No. 1555 | Nev. | Jul 15, 1899
Lead Opinion
At the general election of 1898, the relator, the respondent, George Russell, and J. B. McCullough were candidates for the office of governor of the State of Nevada. By the official canvass it appeared that the respondent received 3,570 votes, the relator 3,548 votes, and each of the other candidates a lesser number than the relator. The respondent was declared duly elected to the said office for the term of four years from the first Monday in January, 1899. A commission was duly issued to him accordingly, and upon said last-named date he
This proceeding is brought to oust the respondent from said office, and to instate the relator therein. The relator, by his complaint, alleges that on the 2d day of January, 1899, the respondent usurped, intruded into, and ever since and now unlawfully holds, the office of governor of the State of Nevada, and ever since has, and now withholds the said office from relator. He alleges that the relator received the highest number of the legal ballots cast for said office, and was duly elected thereto, and that a great number of ballots were cast and counted for the respondent which were illegal and void, on certain grounds named, which should have-been, and should now be, rejected from the count of votes cast for governor, and that, if they be excluded therefrom, the true result of the election will be found to be in favor of the relator.
It is due the able array of counsel of the respective parties to state that they have exhibited remarkable industry in presenting the facts, and in compiling the authorities in support of their several contentions on the legal points involved, and have maintained their positions on both questions of law and fact with great clearness and ability. To give in full the questions raised, and note the argument of counsel and the authorities cited, would doubtless fill a volume of the Nevada Reports.
In the preparation of the final opinion the members of the court have endeavored to state as plainly and concisely as they could the more important legal questions presented, and the rulings thereon made during the progress of the trial, as well as those reserved for determination till the close, with brief citations of authorities, and mainly without elaboration. For full citation of authorities on the several questions raised and discussed, reference is made to the briefs of the counsel. The desire of the court has been, throughout the trial, to reach as speedily as possible the final and paramount question in this case, for which of the candidates, the relator or the respondent, were the greater number of legal ballots cast for the office of governor? and from the evidence
Preliminary Question: The respondent presented a preliminary question' — an objection to the jurisdiction of the court on the ground that the proceeding was not brought by the attorney-general, or in his name. The statute authorizes that officer to bring such action upon his own information, or on the complaint of a private party in the name of the state, against any person he has reason to believe usurps, intrudes into, or unlawfully holds or exercises, any public office or franchise. (Gen. Stats. 3342.) He may, in addition to the statement of the cause of action, set forth in the complaint the name of the person rightly entitled to the office, with a statement of his rights thereto. (Gen. Stats. 3343.) The attorney-general, not believing that' the respondent had usurped, intruded into, or was unlawfully holding the office of governor, refused to bring the action. He interposed no objection to the relator bringing the action in the name of the state on his own relation, and the court granted him leave to do so. The constitution vests in this court original jurisdiction in quo warranto proceedings. The respondent’s objection was overruled, not without the court entertaining doubts as to the correctness of the ruling. To have dismissed the proceeding would have left the relator without an adequate remedy, although by his complaint he showed that he had a right to said office.
“An act relating to elections” (Lawrs 1873, p. 197) provides for contesting the election of any person declared duly elected to a district, county, or township office, but it contains no valid provision for contesting the election of a person declared elected to a state office. The only remedy a person has, who may be duly elected to a state office, to oust one unlawfully holding the same, and have himself instated, is by proceedings in quo warranto; and when the prosecuting officer refuses to institute such proceedings there is no remedy, unless the contestant be permitted to bring the action on his own relation. Evidently the legislature did not intend to deny to any person the right to have his claim to an office adjudicated by the courts in the event'of the refusal of the
Inspectors and Glerics: The statute (Laws 1873, p. 197, sec. 2) provides that the inspectors and clerks of election “shall not be appointed from the same political party,” The question of the validity of the appointment of inspectors and clerks in Humboldt and Lander counties from the same political parties was raised by respondent’s demurrer to the complaint. Held, that said provision of the statute is directory, and non-compliance therewith, simply, is not sufficient ground for rejecting the vote of the county or precinct; that it is only those provisions of the election law relating to the time and place of holding elections, the qualifications of voters, and such others as are made essential prerequisites to the validity of an election, that are mandatory; that an honest or mistaken disregard of them, not resulting in fraud, will not justify the rejection of an entire vote of a precinct. (Russell v. McDowell, 83 Cal. 70" court="Cal." date_filed="1890-02-03" href="https://app.midpage.ai/document/russell-v-mcdowell-5444442?utm_source=webapp" opinion_id="5444442">83 Cal. 70, 23 Pac. 183; Paine, Elect. 379; 6 Am. & Eng. Enc. Law, 302; McCrary, Elect.)
Misconduct on the part of the inspectors, electors and bystanders at Paradise and Kennedy precincts in Humboldt county, and at three precincts named in Lander county, at said election, was alleged by the complaint, setting forth specific acts done, such as are prohibited by an act to promote the purity of elections, and by that act made criminal offenses. It was not alleged that the respondent in any manner participated in said acts, or that they were done with his knowledge or consent, or that any elector who desired to vote for the relator was prevented from properly marking his ballot in secret and casting it for him, or that any elector was influenced to vote for respondent on account of any of the alleged acts, or that any elector who voted at either of said precincts participated in any of the said acts. On demurrer to the complaint, held: That said alleged acts are not sufficient grounds for rejecting the vote of any of the said precincts from the canvass of the votes cast for governor.
The Soldiers’ Votes: It was alleged by the complaint that Troop A, First Nevada Cavalry, in actual service in the United States army without the boundaries of the state, on the 8th day of November, 1898, on board ship on the high seas, between the coast of California and the Hawaiian Islands, who were citizens and electors of this state, held an election and cast their ballots in due form of law, and made due return thereof, to the secretary of state; that the board of canvassers, consisting of the governor, chief justice of the state, and the United States district attorney, as provided in the election ordinances of the constitution of this state, and the present state board of canvassers, consisting of the chief justice and one or more of the associate justices, have each failed to open and canvass said soldiers’ votes; that said votes, if opened and canvassed, will show 11 votes cast for the respondent and 24 votes cast for relator; and that said votes should be canvassed and counted by the court. Held, that said election ordinance applied only to the election held in pursuance of the mandate of congress, found in the enabling act, requiring the constitutional convention to submit for ratification or rejection the constitution to the people of the Territory of Nevada, including those in the army of the United States, both within and beyond the boundaries of the territory; that the provisions of said ordinance do not, and were not intended to, apply to future elections held under the
The Answer: The respondent’s answer consists of denials and allegations. The question of the validity of 447 ballots cast for relator in Reno was raised. It was most earnestly and elaborately argued by respective counsel, as the decision of the court if against relator’s contention, it was doubtless considered, would terminate the .proceeding, under a rule adopted in the Sweeney-Hjul Case, 23 Nev. 409" court="Nev." date_filed="1897-04-05" href="https://app.midpage.ai/document/sweeney-v-hjul-3548914?utm_source=webapp" opinion_id="3548914">23 Nev. 409, 48 Pac. 1036, and 49 P. 169" court="Nev." date_filed="1897-04-05" href="https://app.midpage.ai/document/sweeney-v-hjul-3548914?utm_source=webapp" opinion_id="3548914">49 Pac. 169. The opinion and rulings of the court on that question were given as follows:
“ The respondent has set up in his answer, as an affirmative defense, that at said election there were five election districts duly established in the city of Reno, each district embracing one of the five wards of the city; that the act incorporating the city provided that the electors of each ward should elect one councilman, the five councilmen thus elected to constitute the board of councilmen of said city; that in each ward a certain number of ballots, all of which had printed thereon the names of all the candidates for city councilmen, were cast and counted for the relator, amounting in the aggregate in all the wards to 447 ballots, on which there were crosses and other illegal and distinguishing and identifying marks made opposite the name of the persons named and nominated for councilmen in each of the other wards of the city.
“The relator interposed a general demurrer to that portion of the answer, and asked the court to decide the question of the validity of the ballots cast in the respective wards by voters who voted for councilmen who resided in, and were*169 candidates for the office of councilman for, award other than that in which the voter resided or was entitled to vote, irrespective of the allegations that said ballots contained other distinguishing and identifying marks. It is claimed by the relator that, under the act incorporating the city of Reno (Stats. 1897, p. 50), each elector of the city had a right to vote for all five of the city councilmen. Upon this question the court is of one mind. By section 3 of said act it is provided that the corporate powers of the city shall be vested in a city council, to consist of five members, who shall be actual residents and owners of real estate in the city, who shall be chosen by the qualified electors thereof, provided that no two or more of said five councilmen shall be residents of the same ward. If this section stood alone, without further enactment limiting or restricting in any manner its provisions, then would the claim of the relator be tenable; but it is further provided by section 5 of said act that at the general election in November, 1898, and at each general election thereafter, there shall be elected one councilman in each ward, who shall bé a resident of such ward, and an owner of real estate in the city, who shall hold office for the term of two years, and until their several successors are elected and qualified.
“The further provision of said section relates to the manner of filling any vacancy that may occur in the board, and the time the councilmen so elected shall enter upon the discharge of their duties. It cannot be said or urged with any reason that the legislature did or intended to do an unnecessary thing by the enactment of section 5 of said act, yet, if relator’s contention is true, then it was unnecessary to provide that there should be elected 'one councilman in each ward who shall be a resident of such ward,’ as section 3 practically made provision for the same. If the legislature did not intend what is said in express terms, then it did an unnecessary thing, and the requirements of section 5 would have been complete by the simple provision for the election of five councilmen at the general election of 1898, and at each general election thereafter, to hold office for a term of two years, and until their successors are elected and qualified. This is the construction we are asked to put upon this section, and, in order so to do, must eliminate language deliberately*170 incorporated in the statute by the legislature, that would give it a meaning different from the one claimed.
“It is not our duty to legislate, or to destroy legislative intention, except for constitutional reasons, under well-established rules. It is our duty to construe laws and give effect to legislative intention. Under well-settled rules of construction (so well settled as not to require citation of authorities), to the effect that the courts will look into the statutes themselves (the language used by the lawmakers in the statutes), and, in order to give effect to all the provisions of the statutes, will consider the various sections thereof together, the question becomes plain and simple. Under these rules the councilmen of the city of Reno were to be chosen by the electors of the city — each councilman by the electors of his ward. In other words section 3 provides for the election of the city councilmen of the city, and section 5 provides for the manner of their election, etc. The language used in our constitution presents almost an exactly parallel case, from which the same claim could as reasonably be made, and yet no one would pretend to make such a claim. Section 1 of article 2, providing how and by whom the elective franchise may be enjoyed, declares that every male citizen of the United States, not laboring under disabilities named in the constitution, of the age of twenty-one years and upwards, who shall have actually, and not constructively, resided in the state six months, and in thé district or county thirty days, next preceding any election, ‘shall be entitled to vote for all officers that now are or hereafter may be elected by the people, and upon all questions submitted to the electors at such election.’
“ The right to vote for all officers, from governor to and including all assemblymen and state senators, could not be given in stronger or broader language, and, standing alone, such right might reasonably be claimed by the elector; yet no one claims to exercise the right, because, by subsequent sections, in a different article, provision is made for the election of senators and assemblymen in their respective districts. The assertion of any such right by the individual elector could be maintained only by ignoring and utterly disregarding the subsequent sections regulating and governing the*171 election of senators and assemblymen in their respective districts. The same may be said of section 3, incorporating the city of Reno. If each elector of the city has the right to vote for all the five councilmen to be elected therein, then must we disregard the express provision of section 5 of the same act. It has also been claimed that a councilman, under the law, has no exclusive power or authority in his own ward. Here, again, the analogy between the statute and constitution is apparent. Neither has the assemblyman or senator, by constitution or law, any exclusive power or authority in his county or district.
“We come now to the more serious and important question, involving the application of the rule laid down in Sweeney v. Hjul to the facts alleged in respondent’s 'answer. We fully realize the importance and effect of that rule, and the strength of the reason upon which it is based, under the Australian ballot law, as applying to the individual elector and the individual ballot; yet a case has arisen under the construction of that act which could never have been contemplated by the legislature in its passage, and the strict construction of which would operate to disfranchise a large per cent of the voters of the state living in the same county, and by the same strictness of construction would, upon a more careful examination of the act, exclude the ballots of any precinct or county which might through the fault of the officers have printed thereon names of officers for whom the elector had no right to vote in such precinct or county.
“The right of the single elector may be and is just as sacred as the rights of the many, under our constitution; yet where a construction of the law is likely to disfranchise a large number of the electors in a case, arising through the mixed fault of the officers and voters in preparing and casting ballots in a precinct or county, in which reason almost conclusively suggests that there was neither fraud nor corruption on the part of either, there being no showing, by averment or otherwise, outside the ballots, of such fraud or corruption, and which never could have been contemplated by the legislature in the passage of the act, the language of which must be construed by the court in order to give it a just and reasonable effect and harmonize it with constitu*172 tional rights, and that much-desired purity of election intended by its passage, and where it is apparent that any modification of the construction of such act heretofore given cannot be made in the interest of many, under the above showing, without injury to the individual and his rights, then justice demands that the rule and construction be abrogated, in the interest of all, and the settlement of the matter be left to the legislative department to provide in express and certain terms, having regard for the constitution, plain and simple rules that shall govern in all such cases.
“For these reasons a majority of the court deem it proper to overrule that part of the decision in Sweeney v. Hjul applicable to the facts shown by that part of the answer under consideration, and sustain the relator’s demurrer thereto. This conclusion has been reached after deliberate and careful consideration and discussion, and not without some doubt, and is based in part upon the rule that public interest in matters of this kind will be best subserved by giving a law of doubtful meaning the construction that will result in the least wrong and injustice.”
The Election in Storey County: For further answer the respondent alleged, in substance, that on the 3d day of November, 1896, F. C. Lord was duly elected state senator for Storey county for the term of four years from and after the 4th day of said November, and subsequently duly entered upon the discharge of the duties of his office; that thereafter, on the 8th day of July, 1898, he was duly appointed paymaster in the army of the United States, (a lucrative office), with the rank of major; that on the____day of October, 1898, J. A. Conboie was nominated as a candidate for state senator by petition filed with the county clerk of said count}', to fill the unexpired term for which Lord had been elected; that at said last-named date there was no vacancy in the office, and the governor of Nevada had not by proclamation called an election to fill any such vacancy; that the name of J. A. Conboie was printed on the ballots distributed and used in all the precincts in said county at said election; that there were 595 ballots cast and counted for relator for said office of governor with the name of said J. A. Conboie printed thereon as a candidate for state senator, and with a cross opposite his
The constitution provides: “No person holding any lucrative office under the government of the United States, or any other power, shall be eligible to any civil office of profit under this state.” (Article IV, sec. 9.) It was admitted in argument on demurrer to the above portion of the answer that F. C. Lord accepted said appointment and entered upon the duties of the office. Held, that, by reason of the acceptance of said appointment, he became incapable of legally holding the office of state senator; that the acceptance of the federal office was a resignation of the state office, and created a vacancy in the latter office. (State v. Clarke, 3 Nev. 570; State v. Clarke, 21 Nev. 333" court="Nev." date_filed="1892-10-05" href="https://app.midpage.ai/document/state-ex-rel-summerfield-v-clarke-3548736?utm_source=webapp" opinion_id="3548736">21 Nev. 333, 31 Pac. 545; McCrary, Elect., 3d ed., sec. 301; People v. Carrique, 2 Hill, 93; People v. Leonard, 73 Cal. 230" court="Cal." date_filed="1887-08-26" href="https://app.midpage.ai/document/people-ex-rel-marshall-v-leonard-5443106?utm_source=webapp" opinion_id="5443106">73 Cal. 230, 14 Pac. 853.) It was contended by counsel, upon the authority of the California cases, that a special election must be held to supply a vacancy occuring before the expiration of a full term in office, and that the proclamation of the governor is necessary to the validity of a special election. No such proclamation was issued with respect to any vacancy in the said office of state senator.
Section 1668, Gen. Stats., provides: “ When any vacancy shall occur in the office of a member of the senate or assembly by death, resignation or otherwise, and a session of the legislature is to take place before the next general election, the governor shall issue a writ of election * * * to fill such vacancy.” Held, that no proclamation or writ of election was necessary to enable the people of said county to legally fill said vacancy at said election, as there was no session of the legislature to take place between the date of the occurrence of said vacancy and the next general election. It was argued that voters are not presumed to know that an officer has resigned or died, and that one of the functions of the governor’s proclamation is to give notice of the fact of a vacancy. But F. C. Lord was a prominent citizen of Storey county, and well known to the people, and for several years prior and up to said appointment was the duly commissioned
.Registration: It is alleged by the answer that in the city and township of Reno there were more than 300 names of persons illegally placed on the register of voters by parties other than the registry agent, and that more than 200 of these persons thus illegally registered cast their ballots for the relator, and that said ballots were canvassed and counted for him. It is contended by counsel for respondent, as we understand, that the votes of these persons should be excluded from the count in this case, or, if that be impracticable, that the election held in Reno be declared void, so far as the governorship is concerned. It is not alleged, nor was it attempted to be shown, that said 300 persons, or any of them, were not duly qualified electors, by reason of the want of any of the electoral qualifications prescribed by the constitution.
The evidence as to said registration is that the registry agent, by reason of being sick for 10 or 12 days immediately preceding the statutory time for closing the registration, was unable to attend to the registration of the voters, and he requested W. D. McNeilly, the constable, who had his office in the room with the registry agent, to take the names of persons applying for registration in his absence, and enter them on the official register. Subsequently the registry agent certified the names of all of these persons to the inspectors of election in the several wards of Reno, with the names of the persons he had registered himself. Most of these persons, if not all, voted at said election. McNeilly testified that he registered no one about whose right to registration he had any doubt; that he consulted the district attorney and the chairman of the board of county commis
While the statute provides for filling a vacancy occasioned by death or resignation of the registry agent, there is no provision for the registration of voters in case of any other disability of the agent. By section 14 of the registry law, the fact that the name of a person offering to vote appears in the check list'and copy of the official register furnished the inspectors by the regular registry agent is prima facie evidence of such person’s right to vote. The inspectors have no right to refuse to receive his vote, except upon his failure to prove his identity as the person who was registered in that name, when required to do so under the provision of said section. “They are only ministerial officers in such a case, and have no discretion but to obey the law and receive the vote.” (Cooley, Const. Lim. 617; Wolcott v. Holcomb, 97 Mich. 361" court="Mich." date_filed="1893-11-10" href="https://app.midpage.ai/document/wolcott-v-holcomb-7936624?utm_source=webapp" opinion_id="7936624">97 Mich. 361, 56 N. W. 837.) .
Under the above facts and circumstances, we are of the opinion that the ballots of the said persons so registered should not be rejected on account of said irregular or illegal registration.
Non-Resident Voters: It' is alleged by the complaint that several persons named voted for the respondent at certain precincts who were not residents of the county, and like allegations are made by the answer with respect to persons who voted for the relator, but neither party produced any evidence to sustain such allegations. It is alleged by the complaint that in certain precincts in Lander county some 20 or more persons named voted for respondent who were not residents of the precinct, but residents of other precincts in
The statute makes it the duty of the county commissioners to establish election precincts and define the boundaries thereof, but if there be an election precinct established in any county, with the boundaries so defined that the courts or the electors may determine the territorial extent of the precinct, it has not been shown in this case. In a county where there are no election precincts properly established and bounded, an elector of the county, properly registered by any registry agent therein, can legally take the certificate prescribed by section 10 of the registration law, which will entitle him to have his name registered at any other polling place in the same county at any time before the delivery of the certified copy of the register to the inspectors of the election, and when so registered he will be entitled to vote at such polling place.
Errors of Inspectors: It is alleged by relator, in substance, that in certain precincts of the several counties legal ballots were cast for him, but not counted by the inspectors; that in certain precincts a certain number of ballots, amounting in the aggregate to several hundred, which contained distinguishing and identifying marks, such as to render them void, were cast and counted for the respondent. By the answer it is likewise alleged that a certain number of legal ballots in certain precincts were cast for respondent, but not counted for him, and that in certain precincts and counties a great number of illegal and void ballots, by reason of distinguishing and identifying marks made thereon, were cast and counted for the relator. In support of these allegations, respectively, the parties offered in evidence the ballots. In nearly every instance when the ballots were offered from a
The ballots were produced in court by the present county clerks, whose testimony is clearly sufficient to show that the ballots were properly cared for after coming into their possession, but in most cases the ballots were shown to have been in the custody of other officers before being received by the clerks. These other officers were not present, and their testimony was not taken. The ballots were admitted under the objection; the court reserving the consideration of the objections until its examination of the ballots themselves, the official returns of the inspectors, and the ballots returned as rejected by them. From such examination it clearly appears that there was no marking of or tampering with any of the ballots after leaving the hands of the voters that impeaches their validity. All of the objections to the introduction of the ballots in evidence are overruled.
The Ballots: The relator and the respondent, by their respective counsel, examined all the ballots cast in the state, in open court, except from four precincts, in which the official returns show that 60 votes were cast for relator and 100 for the respondent; and each party objected to certain ballots on the alleged grounds that they contained distinguishing and identifying marks, and by reason thereof were void, and should not have been counted by the inspectors, and should not be counted by the court. The relator objected to 564 ballots cast for respondent, and the respondent objected to 593 ballots cast for the relator. There were 6,018 ballots cast for the two candidates to which no objection was made by either party. Of these ballots the relator received 2,979, and the respondent 3,039. Of the ballots cast for respondent, and counted for him by the inspectors, to which the relator objected on the ground that they contained illegal, identifying, and distinguishing marks, the court rejected 135, upon the ground specified.
Of the ballots cast for relator, and counted for him by the inspectors, to which the respondent objected on the same ground, not including the so-called red-line ballots, the court rejected 119. Deducting the 135 ballots from 3,570 counted for respondent as shown by the official returns leaves him
Objections: We come now to the consideration of the objections made to the ballots offered by the respective parties. The necessarily hasty examination of a part of the relator’s objections to ballots, made during a temporary adjournment of court, and without a copy of the reporter’s notes, resulted, as we anticipated, in some mistakes in overlooking objections made, to which counsel on both sides subsequently called our attention. We have again examined all the ballots, and carefully noted the objections taken thereto, as shown by the copy of the reporter’s notes, and have endeavored to correct any such errors — errors mainly due to rulings upon objections to ballots which had been rejected by the election officers, and in some cases where the markings rendering the ballots void were, from their position and character, not easily detected during the hasty examination given. It is sufficient to say that, in the absence of any averment or proof of fraud or corruption on the part of any person at the election, we have considered the constitutional right of the electors, as well as the rights of the relator and respondent, in all the rulings upon objections to the separate ballot, and have held ballots good and valid in all instances
We have also taken into consideration the fact that the markings required to be made by the elector as indicating his choice of candidates must be made by pencil, by as many different persons as there were ballots cast; that there were electors of different ages, conditions of health, and of different experience in the use of pencils. We have also taken into consideration the place required by law where the markings were made. We have also considered the fact that the law does not, and could not possibly, specify the size, the length of the lines composing the cross, or the angle at which' these lines should cross each other, that no two persons make the same kind or character of a cross with a pencil, and that it is a rare occurrence that the same person makes the same kind or character of a cross with the same pencil under the conditions imposed.
We have therefore overruled objections to the validity of ballots based upon the following alleged bad markings: In all cases where the elector had attempted to make the cross, and had actually made the so-called letters “Y,” “T,” inverted “T,” “V,” inverted “V”; also, where the cross made resembles the figure “4”; also, the so-called double crosses, where it is apparent the voter had attempted to retrace the lines composing the cross; also, crosses made by curved or irregular lines, evidently the result of nervousness or physical infirmity, or the roughness of the boards upon which the ballot was placed for marking; also, accidental pencil markings; also, ink blotches, evidently the result of accident on the part of the election officers; also, dirty finger marks; also, crosses indiscriminately appearing upon the face of the ballots, where it is evident such crosses were simply the impressions of crosses made in the proper places upon the ballots with a soft lead pencil, and such impressions were made by the folding of the ballots (of this class there were a very large number of ballots); also, ballots with words written thereon in pencil or ink, where it is apparent from the position of the words upon the ballot, the import of the words themselves,
Many objections were also made to ballots based upon the form and irregularity of the crosses, which we do not deem it necessary to specifically name.
Objections to ballots which have been sustained are in the main based upon the following kind or character of marks: Ballots with horizontal lines thereon; ballots marked with a capital “ W,” and a horizontal line crossing the same; ballots in some instances marked with a perpendicular or vertical line; ballots marked with a circular loop; ballots 'marked with crosses, and the same erased or scratched out with a lead pencil; ballots with erasures sufficient to deface and destroy the texture of the paper; ballots with words written thereon, in all cases where it is apparent that the words were written by the elector, or by some other person unauthorized, before the same were cast by the elector; ballots with crosses on the margin thereof, and not after the names of candidates to be voted for; a ballot with the letter “D” of “A. D.,” in the official heading thereof, scratched over deliberately with a lead pencil; ballots marked with crosses not after the names of any candidates to be voted for, but placed after the designation of the office; ballots with crosses placed immediately between the printed names of the candidates; some ballots marked with stars and with marks resembling spiders; ballots with the cross and also a figure “1” placed thereafter; ballots where the elector had voted for the proper number of
Ballots with the crosses directly on the line between the candidates for governor, and in such a position as to prevent the court from determining for what candidate the same were intended to be cast, have not been held to be void, but such ballots have not been counted for the office of governor, and other ballots bearing marks the character of which renders it impossible to describe. We deem it necessary to say here that under the law we have held as valid and counted all ballots having a proper cross, not in the square prepared thereon in printing, but after and to the right of the names
In Nye county, Union Canyon precinct, relator’s Exhibit No. 1; in Currant Creek precinct., relator’s Exhibit No. 3; Tybo precinct, respondent’s Exhibit No. 4.
Lyon county,-Wabuska precinct, relator’s Exhibit No. 1; Dayton precinct, relator’s Exhibits Nos. 6, 8, 12, 15, and 16; respondent’s Exhibits Nos. 8, 9, 10, 13, 14, and 16; Silver City precinct, relator’s Exhibit No. 1 and respondent’s Exhibit No. 1; Mason Valley precinct, relator’s Exhibits Nos. 1, 2, 3, 4, 7, 8, 9, 10, and 11; respondent’s Exhibits Nos. 1, 2, 3, 5, 7, and 8; Sutro precinct, relator’s Exhibits Nos. 1 and 2. In Plummer precinct, Lyon county, objections to relator’s Exhibit No. 1 are sustained, and objections to respondent’s Exhibit No. 1 are also sustained.
Lincoln county, Delamar precinct, relator’s Exhibits Nos. 2, 31, 33, and 34. In the same precinct, relator’s Exhibit No. 16 is a ballot objected to because the cross is immediately on the line between the names of Sadler and Russell. Relator’s Exhibit No. 9 is a ballot objected to for the reason that the elector had voted for both the respondent and McCullough for governor. The official returns show that the board of inspectors did not count either of these ballots for the respondent, and it is therefore unnecessary to pass upon the same, or consider them as a part of the final result. In the same precinct objections to respondent’s Exhibit No. 1 were sustained. In Pioche precinct objections to relator’s Exhibits Nos. 1, 3, and 4 are sustained, and objections to respondent’s Exhibits Nos. 1 and 2 are sustained. In this precinct 1 ballot was voted for both the respondent and relator, but the same was not counted in the official returns. In Mesquite precinct objections to relator’s Exhibit No. 1 are sustained. In Hiko precinct objection to relator’s Exhibit No. 2 is sustained. In Deer Lodge precinct objection to respondent’s Exhibit No. 1 is sustained. In Searchlight precinct objections to relator’s Exhibits Nos. 1 to 10, inclusive, are sustained. In Panaca precinct objections to relator’s Exhibit No. 1 are sustained.
Eureka county, Eureka precinct No. 1, objections to relator’s
In Lander county, Austin precinct No. 1, relator’s Exhibit No. 16, a ballot voted for the respondent and rejected by the board of inspectors, is a good and valid ballot, and should have been counted for the respondent. In the same precinct relator’s No. 17 is also a ballot voted for the respondent and rejected by the board of inspectors, but should have been counted, and is by the court counted for him. By reason of the above errors, the respondent gains 2 votes in this precinct. In Dean precinct, relator’s Exhibit No. 3, voted for both Sadler and Russell, was counted by the board for the respondent, but should have been rejected. In Austin precinct No. 2, objections to relator’s Exhibits Nos. 6, 8, and 11 are sustained. In the same precinct objections to respondent’s Exhibit No. 4 are sustained.
In White Pine county, Aurum precinct, objections to relator’s Exhibit No. 1 are sustained. In Osceola precinct objections to relator’s Exhibit No. 1 are sustained. The official returns of said precinct show that this exhibit was not counted by the board of inspectors, and sustaining the objections thereto makes no change in the official returns. In Ely precinct of the same county 140 electors cast their ballots. There were found in the returns of this precinct 3 blank ballots marked “ Rejected ” by the officers, 2 of which have the strip containing the number on the right-hand side. One of the 3 ballots voted for Russell was evidently and
In Elko county, Lamoille precinct, objections to relator’s Exhibits Nos. 1, 6 and 11 are sustained. In Ruby Valley precinct of the same county objections to respondent’s Exhibit No. 3 are sustained. In North Fork precinct of the same county the count made by the court shows a loss of 1 vote for the respondent. In Tuscarora precinct objections to relator’s Exhibit No. 18, a ballot cast for the respondent and rejected by the board of inspectors, and overlooked by
In Humboldt county, Lovelock precinct, objections to respondent’s Exhibits Nos. 16 and 19 are sustained. In Kennedy. precinct of the same county objections to relator’s Exhibit No. 1 are sustained. Objections to relator’s Exhibit No. 7, which is a ballot cast for the respondent and rejected by the inspectors, are overruled, and this ballot counted for the respondent. By this ruling the respondent gains 1 vote over the official count in this precinct. In Winnemucca precinct of said county objections to relator’s Exhibits Nos. 4
In Churchill county, Stillwater precinct, objections to respondent’s Exhibit No. 1 are sustained. In New River precinct of the same county objections to respondent’s Exhibit No. 2 are sustained.
In Esmeralda county, Hawthorne precinct, objections to relator’s Exhibits Nos. 2 and 3 are sustained. In the same precinct objections to respondent’s Exhibit No. 3 are sustained. In Pine Grove precinct of the same county objections to respondent’s Exhibit No. 1 are sustained. In Aurora precinct of the same county objections to respondent’s Exhibit No. 1 are sustained. In Douglas precinct of said county objections to relator’s Exhibit No. 9 are sustained. In the same precinct objections to respondent’s Exhibit No. 1 are sustained. By sustaining the objections to the last-named exhibit, the returns correspond with the official count, and it is probable that this ballot was not counted by the inspectors for either candidate for governor. In Candelaria precinct of the same county objections to relator’s Exhibits Nos. 2 and 3 are sustained.
In Douglas county, Genoa precinct, objections to relator’s Exhibit No. 1 are sustained. In the same precinct objections to respondent’s Exhibits Nos. 1, 2, 3, 4, 5 and 6 are sustained. In Mottsville precinct of the same county objections to relator’s Exhibit No. 1 are sustained, and objections to respondent’s Exhibit No. 1 are sustained. In Cave Rock precinct of the same county objections to respondent’s Exhibit No. 2 are sustained. In East Fork or Gardnerville precinct of the same county objections to relator’s Exhibits
In Ormsby county, First ward of Carson City, objections to relator’s Exhibits Nos. 1, 2, 3, 6, 9 and 10 are sustained. In the same precinct objections to respondent’s Exhibit No. 3 are sustained. In the Second ward of Carson City objections to relators Exhibits Nos. 1, 3, 4, 5, 6, 7, 9,11 and 12 are sustained. In the same ward objections to respondent’s Exhibits Nos. 2, 3, 4, 5, 11 and 12 are sustained. In Empire precinct of the same county objections to relator’s Exhibits Nos. 1 and 2 are sustained.
In Washoe county, Wadsworth precinct, objections to respondent’s Exhibits Nos. 2, 11, 12, and 18 are sustained. In this precinct, also, the count made by the court shows a loss of 1 vote by the respondent. In Huffaker’s precinct of the same county, objections to respondent’s Exhibit No. 2 are sustained. In Verdi precinct of the same county, objections to relator’s Exhibit No. 2 are sustained. In the same preempt objections to respondent’s Exhibit No. 1 are sustained. In.JhejFirst ward of Reno, of said county, objections to respondent’s Exhibits Nos. 2 and 4 are sustained. In this ward'thP count made by the court shows a gain of 2 votes over the official count for the relator. In the Third ward of Reno, same county, objections to relator’s Exhibits Nos. 2, 3, 4, and 6 are sustained. In the same ward objections to respondent’s Exhibits Nos. 8, 9, and 10 are sustained. In the Fourth ward of Reno objections to respondent’s Exhibits Nos. 5 and 9 are sustained. In the Fifth ward of Reno objections to relator’s Exhibit No. 2 are sustained. In the same ward objections to respondent’s Exhibits Nos. 3, 4, 5, and 9 are sustained. By the count made by the court the relator also loses 2 votes in this ward.
In Storey county, First ward, Virginia City, objections to relator’s Exhibits Nos. 1, 2, 3, 4, 5, 6, 10, 11, and 12 are sustained. In the same ward objections to respondent’s Exhibits Nos. 1, 6, 10, 14, 15, 16, 18, and 19 are sustained. In the same ward relator’s Exhibit No. 13, a ballot voted for the
The consideration of the objections made to the so-called red-line ballots cast in Gold Hill precinct of this county presents in many respects a new question' — one differing in important points from any other question heretofore considered and determined by this court in any of the cases arising under our Australian ballot or election law. The facífe^bpiefly stated, are that one H. J. Maguire was duly nominated by petition as an independent candidate for member oí the assembly from Storey county. The republican and silver parties had also nominated candidates for the full representation of that county for the same office. The duly certified list of candidates for office, including the name of Maguire, had been published in the newspaper as required by law. The official ballots, printed upon the official ballot paper furnished by the secretary of state, had been printed, upon which appeared the name of the said Maguire as an independent candidate for member of the assembly. The sample ballots required by the act, upon which also appeared the name of Maguire as an independent candidate for the assembly, had also been duly printed and distributed as required by law. Every step required for the information of the electors of Storey county had been properly taken by the officers authorized to act.
In all precincts in Storey county, excepting Gold Hill, no ballots were cast bearing the red lines. In Gold Hill precinct the greater number of the ballots cast were those last prepared, without the name of Maguire, and without the red lines. The election officers of Gold Hill precinct returned nearly 200 ballots of the last prepared as not having been voted, and still in book form. About 55 of ballots bearing the red line through the name of the said Maguire were cast and counted in Gold Hill precinct for the relator, to which respondent has made objections.
The chief purpose and object of the enactment of our Australian ballot law were to prevent fraud and corruption at the elections. As the most potent means for this purpose, it requires that the ballots shall be printed upon the same kind of paper for the various counties and precincts of the state, to be furnished by officers authorized in the matter by the law. Not only is uniformity in paper required, but uni
In other words, the legislature sought, by a uniform system of voting, including a uniform kind or character of ballots, and the printing of the same, and the markings made, to render the ballots cast absolutely secret. Therefore uniformity in kind or character of paper used for ballots throughout the state, uniformity in printing ballots for the various precincts throughout the state, and uniformity in the character of markings, as nearly as practicable, by all electors, are the very foundation and basis of our election law. No provision is made whatever, in direct terms, for the resignation of a candidate nominated for a public office. If such right exists, it arises solely by implication, under a strained construction of the latter clauses of section 7 of the Australian ballot law, as found in Stats. 1893, p. 113. If the clause of that provision by implication authorizes the resignation of a candidate for office, by the same rule of construction must it be said that the resignation must be sent to the convention making the nomination, or' a committee appointed by such convention, with delegated authority to fill vacancies, 'or the petitioners nominating such candidate.
Whatever view may be taken of this provision of the law, it is evident that the officer is authorized to print or write ■only the name of the person substituted to fill the vacancy caused by such resignation. In no event is he authorized, directly or indirectly, to make other changes upon the face of the printed ballot. When we stop to consider it — changes necessary to be made upon the tickets of the entire state, caused by a resignation of a candidate for a state office — the impracticability of this provision of the law is clearly made apparent. But, be the operation and effect of this provision of the law what it may, it is clear that any attempted changes in the face of the ballot as printed, whereby more than one
If two kinds of ballots can be used in the same precinct, then, under like conditions, many different kinds and forms can likewise be used, and the basis of the law thereby destroyed, leaving its provisions a dead letter upon the books. That this uniformity in ballots might be effectual, and the voter also protected in his constitutional right, and to meet the contingency arising from the facts in this case, the legislature has made ample provision. It is provided by section 16 of the act that: “In case of prevention of an election in any precinct by reason of the loss or destruction of the ballots intended for that precinct, or for any other cause, the inspector or other election officer for the precinct shall make an affidavit setting forth the fact and transmit it to the governor of the state. Upon, receipt of such affidavit and upon the application of any candidate for any office to be voted for by the voters of such precinct, the governor shall order a new election in such precinct.” (Laws, 1891, p. 43.)
It will be thus seen that had the secretary of state no ballot paper whatever, and had the resignation of Maguire been proper, and had it been necessary to prepare and print ballots upon official ballot paper, and in the form required for Gold Hill precinct, the voters of that precinct, upon the showing required, could have had an opportunity of expressing their choice for any and all candidates for office at a different time and in due form of law. We must therefore conclude that, rather than destroy the spirit of the law' — rather than
This claim is not tenable. All the ballots in Eureka county passed upon in Sweeney v. Hjul, and all the ballots voted in Reno precinct and passed upon by the court in this action, were uniform — had printed thereon the names of all the candidates. In this action the ballots under consideration have been cast in the same precinct, with the name of Maguire printed thereon, with red lines drawn through the same, and other ballots have been cast in the same precinct, as official, without the name of Maguire printed thereon, and without the red lines thereon. In other language, the ballots cast in Eureka county and in Reno precinct were uniform, and in strict accordance with the spirit and letter of the law.
In Bullion precinct, in Lander county (overlooked in its proper place in the preparation of the opinion), the relator gains 1 vote over the official count. In East Fork or Gardner-ville precinct of Douglas county the relator gains 1 vote over the official count.
We believe it proper to suggest that certain amendments to the law as it exists will obviate many, if not all, of the objections made to the validity of the ballots. It is impossible, under the present system of marking with a pencil, to obtain uniformity in form of markings. This difficulty can be overcome by requiring, as in other states, that the markings shall be made with a rubber stamp. Many objections were also made to ballots because of writing thereon made by election officials. This should be strictly prohibited by the law, except in case of rejected ballots, and in those cases the inspectors should be required to certify over their names, upon the back of the ballot, that it was rejected by them in the count, briefly stating their reasons therefor. We also suggest that the law be so amended as to require, in direct
It is gratifying to be able to state that in this protracted proceeding, in which the respective counsel spared neither time nor energy in their efforts to present to the court such facts, if existing, as would impeach the integrity of the votes cast for the opposing candidate in the several counties, no evidence was found to cast a suspicion upon the good faith or integrity of any candidate, officer, or elector. It clearly appears that said election was entirely free from bribery, intimidation, and coercion, which it is said prevail at elections in other states. The illegal markings found Upon ballots which necessitated their rejection in this case resulted from the carelessness of voters, and the lack of paying attention to the simple mandatory provisions of the statute.
Finally, the court finds from the evidence that Reinhold Sadler, the respondent, received at said election for the office of governor of the State of Nevada 3,446 legal votes, and no more; that William McMillan, the relator, received at said election for the said office 3,383 legal votes, and no more; and, as conclusions of law, the court finds that said Reinhold Sadler was duly elected to said office for the term of four years from the first Monday in .January, A. D. 1899, and is now entitled thereto, and that he is entitled to a judgment to that effect, and judgment against said William McMillan, the relator, for his costs expended in this proceeding.
Judgment is ordered to be entered accordingly.
Opinion on Motion to Strike
ON MOTION TO STRIKE OUT AND RETAX COSTS.
The relator asks the court to strike out of the judgment rendered and entered in this cause on September 20, 1899, the item of $744 25 costs, upon the ground that no memorandum or bill of costs was filed or served within the time required by law or by the rules of the court, also, to
The cause was argued and submitted to the court on the 25th day of July, 1899. Both the relator q,nd respondent filed their respective cost bills on that day. It is provided by rule 6 of this court that the expense of printing or typewriting pleadings, affidavits, briefs, or other papers constituting the record in original proceedings upon which the case is heard in this court, required by the rules to be printed or typewritten, shall be allowed as costs, and taxed in bills of costs in the usual mode; provided, that no greater amount than 25 cents per folio of 100 words shall be taxed as costs for printing, and no greater amount than 12-J cents per folio for one copy only shall be taxed as costs for typewriting; all other costs to be taxed by the clerk in accordance with the fee bill.
By the succeeding clause of the same rule it is required that either party desiring to recover as costs his expenses for printing or typewriting in any cause in this court shall, before said cause is submitted, file with the clerk, and serve upon the opposite party, a verified cost bill, setting forth the actual cost of such printing or typewriting, -and no greater amount than such actual cost shall be taxed. By the third provision of the same rule it is required that, if either party desires to object to the costs claimed by the other party, he shall, within ten days after the service upon him of a copy of the cost bill, file with the clerk, and serve, his objections.' Said objections shall be heard and settled, and the costs taxed, by the clerk. An appeal may be taken from the decision of the clerk, either by written notice of five days, or orally and instanter, to the justices of this court, and the decision of such justices shall be ’final. If there be no objection to the costs claimed by the party entitled thereto, they shall be taxed as claimed in his cost bill.
The above are the only rules of this court regulating the matter raised by the relator’s motion. There is nowhere,
As to that part of the relator’s motion asking that the entire cost bill and costs as carried into the judgment be stricken out, it is sufficient to say that the objection comes too late, under the last clause of subdivision 3 of rule 6, above cited. It is clearly apparent from the last clause of subdivision 3 that objections, to be available, against costs claimed by a party, must be made within ten days after the filing and service of the cost bill. The opinion in this court was filed on the 20th day of September, 1899. The objections of the relator to the cost bill and the judgment for costs were not filed and served until the 5th day of October, 1899.
Objection is also made by relator to the items of express-age paid on account of the transportation of the ballots from the various counties, to be used as evidence upon the trial of said cause.
We are of the opinion that it was a physical impossibility for the clerks of the respective counties to have safely, and, in some instances, in any manner, produced their ballots in court, in answer to the process of the court, otherwise than by expressing them. Such costs were actually necessary in obedience to the process of the court, and were necessarily incurred by the party.
The objection, therefore, not having been made within the time prescribed by the rules, such costs must be taxed as claimed.
For the same reason the other items to which objections are made must be allowed to stand.
It is therefore ordered that the judgment of the court heretofore entered in this action for costs be modified by reducing the same $90.
Rehearing
We have carefully reconsidered the question presented on the motion to retax costs, as suggested in the order reopening the matter, but have been unable to reach a different conclusion. Concede that the cost bills were filed prematurely; it does not necessarily follow, under the facts of the record, that, after the costs have entered into and become a part of the judgment, the judgment should be modified by striking the same therefrom.
Rule 6 of this court is, we believe, broader in its scope than claimed by the counsel for the relator. The language used is broader. It not only covers matters of procedure relating to costs of printing and typewriting transcripts on appeal, and papers in original proceedings, but also the taxation of “ all other costs.”
In subdivision 3, general language is used, requiring objections to costs claimed to be made within a specified time.
A similar requirement has been incorporated into the rules of the district court, upon the theory, no doubt, to supply what seems to be an omission in the statute. We do not believe that we are required by the rules or the statute, under the facts, to modify the judgment because of irregularity of proceeding, claiming costs which were properly taxable within the meaning of the word, where the party asking the modification is proceeding in an irregular manner. As to. those items which could not have been taxed in a regular proceeding, our opinion remains the same. They should be stricken out.
Therefore the items for typewriting, amounting in the aggregate to $131 50, will be stricken out, and the judgment to that extent modified.