No. 1949; No. 1950 | Nev. | Jul 15, 1912
Dissenting Opinion
By the Court,
dissenting in part:
In order, however, that the question desired to be presented by relator may be passed upon fully, in view of the fact that if the contest proceeds counsel for relator could present the same question by amending the certificate so as to comply with the provisions of the statute in so far as raising the point he desires passed upon, we will assume that a certificate meeting all of the contentions of counsel for relator was before us for consideration and give to the statute in question a construction upon the point urged by relator.
A careful reading and consideration of the election laws pertaining to the care, custody, and control of ballots must be given in connection with the section of the statute singled out by relator to support his contention.
The method of carrying on elections and election contests, the casting, care, custody, and preservation of the ballot, and in fact the whole subject of elections, have received as much time and consideration of our legisla-, ture as possibly any other one subject which has come before it for consideration. The issue of " Purity of Elections” and the desire to protect by law, in so far as legislation may do, and to give an untrammeled expression of the people’s will, free from all taint of fraud and corruption, has been as keenly urged in Nevada as in any state in the Union, and in consequence our legislature has attempted to not only provide for laws insuring an honest election, but to safeguard the ballot, which, when cast, is expressive not only of the popular will, but is the title proper to the office of the officer-elect.
The term "document” has a very broad significance, and has very properly been defined in Cyc., as follows: "That which conveys information; that which furnishes evidence, or proof; a written or printed instrument; an instrument upon which is recorded, by means of letters, figures, or marks, matter expressed and described upon it by marks capable of being read; any matter expressed or described upon any substance by means of letters, figures, or marks, or by more than one of these means, intended to be used, or which may be used, for the purpose of recording that matter; anything bearing a legible or significant inscription or legend; anything that may be read or communicating an idea (including thus a tombstone, a seal, a coin, a signboard, etc., as well as paper writings); all material substances on which the thoughts of men are represented by writing or any other species of conventional mark or symbol.” (14 Cyc. 824; Words and Phrases, vol. 3, 2153; Words and Phrases, vol. 6, 5786, 5818.) But to become or to be entitled to
No authority has been cited to this court, nor have I • been able to find any, wherein a ballot or ballot box was ever considered a "public document or record,” for the purpose contended for by relator, and in view of the fact that ballots are not public in the sense that they can be viewed by every one or as " public documents or records” imply they may be and are subject to the inspection of none save persons expressly designated by statute, and compelled to be kept in secret file and custody, gives me reason to believe that no such authority can be found to sustain relator’s contention that they are. The ballots of a state electorate are in effect the title to the offices of those selected by the people, and are zealously and jealously guarded by law, and as a matter of public policy are rightfully surrounded with its every safeguard against loss or fraud. Nor do I believe that the custodians of the ballots prescribed by our statute would be authorized or warranted,, upon the stipulation of counsel in a contest case, to allow the ballots out of their custody, or to deliver them into the custody of others than as designated by law. The ballots not only represent the title -to the office involved in the contest, but are the title of all the other offices, and these officers as well as the public have rights which cannot be jeopardized or stipulated away contrary
Instancing the legislative intent to preserve and conserve the evidence on which an officer-elect may rely,. when the title to his office is questioned, the fallacy of the position of counsel for relator may be more apparent when we illustrate that if we were to hold with relator that upon the mere placing of a certificate upon the ballot box, say by the county clerk of White Pine County at Ely, certifying that it contained the ballots of White Pine County, and upon their arrival in Carson City they were offered and would be by mere virtue of a certificate admissible in evidence, the court would have nothing before it save the certificate of the clerk at Ely certifying up to the time when he put the ballots out of his possession that the ballot box contained the will of the voters of White Pine County. From the time the ballot box would leave the county clerk of White Pine County, in whose care or custody would the ballots be until they arrived in Carson City and placed before this tribunal, before which the cdntest is being prosecuted? If the county clerk of White Pine County could turn them over to Wells-Fargo, he could turn them over to any corporation or person he saw fit, and send them by stage, horseback, or otherwise, as there is no statutory provision provided for the manner of sending them or for their care, if the law providing for their safekeeping, custody, and production before tribunals before which an election contest is pending is not to be considered and if the construction counsel for relator places upon the statute were allowed to prevail. After the ballots would arrive here, to admit them in evidence upon the certificate of the clerk as made in White Pine County would leave a gap of time and space wherein said ballots would be in the custody of another, expressly in conflict with section 1795, supra, and accordingly could not be admitted in evidence without a recertification of the county clerk that they were the same ballots to which he had formerly certified
The application for an order directing the county clerks of the various counties to certify to this court the various ballots and election returns of the several precincts is denied, for the reason that there is no provision for such an order to be made, and the further application of relator to offer in evidence any ballots which may arrive without being in the care and custody of the officer designated by law will be denied until a proper foundation is laid for the introduction of the same as prescribed by the rules of evidence and by law.
Let such be the orders.
Concurrence Opinion
concurring:
I concur in the order denying the application of counsel for an order directing the county clerk of Storey County to certify to this court the ballots and other election returns of the several precincts of that county, for the reasons heretofore given and stated in the opinion of the chief justice.
I also concur in the order sustaining the objection of the offer of the ballot box and contents of one of the precincts of Lyon County, for the reasons stated in the opinion of the chief justice. I do not, however, concur
The ballot box and its contents, together with the other election returns, of the Lyon County precinct were produced in court by the clerk of that county under regular subpena.
The argument made by counsel for respondent to the effect that election returns ought not to be admitted in evidence upon the mere certificate of the clerk, and that it shifts the burden of proof, goes to the wisdom of the statute rather than to the force and effect — a matter with which the courts have nothing to do.
The contention of counsel for respondent, to the effect that a county clerk has no right to permit the ballots to be removed from his office and custody except upon a subpena requiring them to be produced before the court in an election contest, and that for him to certify to the same and then to deliver them to some person or carrier to be brought into the court, under all circumstances, would be contrary to law and in violation of his duty as an officer, cannot, I think, be sustained.
I think it manifest from the provisions of section 1795, Rev. Laws, referred to in the opinion of the chief justice, especially in view of the many other provisions of law for safeguarding the purity of the ballot, that the legislature intended that the ballots should remain in the custody fixed by law, except when their removal was specifically
Under certain circumstances, I think a court conducting a contest would be justified in permitting election ballots and returns to be certified and forwarded under prescribed conditions securing their safety, without requiring the presence of the clerk under subpena. For example, should both sides of a contest for a state office- so stipulate, the fact that it was agreeable to the parties, taken in connection with the saving in expense to the litigants, might justify the court in permitting such procedure. Other situations might present themselves in which such a procedure would be appropriate. Even then, should a clerk refuse to transmit the ballots, resort would have to be had to the only lawful method of compelling their production by subpena.
Where a clerk of a distant county is required to produce the ballots under subpena, the usual and practically the only feasible method for him to bring them is to intrust them to the care of the express company. Most of the ballots introduced in this case have been so transported. As a clerk must resort to some safe agency to transport the election returns, I see no reason why a court may not prescribe such an agency as an arm of the court. Cases may arise in which there may be no objection to such procedure; convenience and the saving of great expense may commend it to all concerned.
In the present case there is strenuous objection to the production of the ballots except by the clerk personally. There does not appear to exist such a condition as, notwithstanding such objection, would warrant the court in permitting the production of the ballots in any other way.
concurring:
I concur in the order as stated in the opinions of the chief justice and Justice Norcross.
Whether ballots be considered public documents or not, under the adverse contention of counsel, would seem to be immaterial, if effect be given to the language of section 1795. If it be admitted that they are public documents, and are admissible in evidence on the certificate of the legal keeper under section 5409 if he appears in court with them in a pending contest and they have been in proper custody until so presented as provided by statute, and I believe they are- because they pertain to public elections and public offices, nevertheless, when they are not presented by the' proper official custodian, the same presumptions regarding their validity, and that there has been no opportunity for interested persons to tamper with them, and for warranting their admission in evidence, do not prevail.
It is ordinarily requisite for the admission of ballots that it be shown that they have been kept in proper official custody. ■ While they remain in the possession of the officers, as directed by law, it is presumed that the officers do their duty and that the ballots are properly preserved; but for apparent reasons the same presumptions do not attach when the ballots are given over to the possession of persons who are not under official oath or obligation, or who may have a direct or important interest in a contest for a public office depending upon the ballots. Although many contestants possess such a high degree of honor that they would not change the bailouts if the custody were given over to them, other contestants might be so void of principle as to change enough ballots to turn the election in their favor if .given the opportunity, which would result in allowing them to have the sole possession of the ballots before they are presented to the court as evidence. The law is not based on the theory that all men are honest, and since a time long prior to the' adoption in this state of the Australian
Section 1795 of the Revised Laws is section 29 of the general act relating to elections, and as originally passed in 1873 (Stats. 1873, c. 171) it had the same provision which is now in force: "That the ballots so deposited with the board of county commissioners shall not be subject to the inspection of any one except in case of contested elections, and then only by the judge, body or board before whom such election is being contested.” This section as orginally passed provided that the ballots and election returns should be directed to the clerk of the board of county commissioners. After an election contest for the office of county clerk, in which the election returns were overturned in favor of the incumbent by a recount of ballots which had been held in his custody, the legislature amended this section in 1879 (Stats. 1879, c. 112) by providing that if the clerk was voted for at the election the ballots and returns should be directed to certain other county officers in the order named in the statute, so that they would be deposited with an officer who was not a candidate and had no interest in the election resulting from the ballots.
It is, and long has been, the policy of the legislature to provide for the official custody of the ballots, as well as for their reception from the election officers by some county officer who is not interested as a candidate at the election. These statutory provisions were enacted to safeguard the ballots by requiring them to be in disinterested official custody and to avoid the dangers which might result from giving them over to the possession of other persons.
The rule is well settled that a later general law does not repeal an earlier special law relating to a particular sub
Whether ballots be considered public documents or not, as the law provides for their official and secret custody, and there is no authorization for turning them over to the contestants, it would seem that they are not admissible under the mere certificate of the clerk when they have been out of his official custody for a period of time after he made and attached his certificate, or at least unless evidence is supplied that they are in the same condition when presented to the court that they were when they left the custody of the clerk; and high authorities hold that they are not admissible even if such evidence is furnished, unless possibly in cases where the irregularity in their official keeping is slight. Mr. McCrary, in his work on Elections (4th ed.) at sections 471, 473, and 475, says:
"Where, as is the case in several of the states, the statute provides a mode of preserving the identical ballots cast at an election, for the purpose of being used as evidence in case of contest, such statute, and particularly those provisions which provide for the safe-keeping of such ballots, must be followed with great care. The danger that the ballots may be tampered with after the count is made known, especially if the vote is very close, is so great that no opportunity for such tampering can be permitted. Such ballots, in order to be received in*16 evidence, must have remained in the custody of the proper officers of the law from the time of the original official count until they are produced before the proper court or officer, and if it appear that they have been handled by unauthorized persons, or that they have been left in an exposed and improper place, they cannot be offered to overcome the official count. * * *
"So much depends upon the terms of the particular statute to be construed that it is impossible to lay.down a general rule applicable to all cases; but the better opinion seems to be that, if the deviation from the statutory requirements relative to the manner of preserving the ballots has been such as necessarily to expose them to the public or unauthorized persons, the court should exclude them; but if the deviations liave been slight, or of such a character as not necessarily to render doubtful the identity of the ballots, the question of their identity may well go to the jury to be determined upon all the evidence. * * *
"Before the ballots should be allowed in evidence to overturn the official count and return, it should appear affirmatively that they have been safely kept by the proper custodian of the law, that they have not been exposed to the public or handled by unauthorized persons, and that no opportunity has been given for tampering with them. ”
Although the law directs that the ballots be retained in the custody of the clerk, and he is not authorized to surrender them except upon subpena or order of the judge, body, or .board before whom the election is being contested, yet, if he does surrender them with his certificate, such certificate can only authenticate the ballots to the time that it is made, for it is impossible for the clerk to guarantee in advance by his certificate that the ballots will be in the same condition at some time in the future after they have been in the custody of other persons that they were when he surrendered them to others.
In view of these statutes, and the construction given by the courts to similar provisions relating to the secret