B. F. LYNIP, Contestant and Respondent, v. L. A. BUCKNER, Contestee and Appellant
Lynip v. Buckner
Bonnieield, J.: I concur.
B. F. LYNIP, Contestant and Respondent, v. L. A. BUCKNER, Contestee and Appellant.
[No. 1436.]
B. F. LYNIP, Contestant and Respondent, v. L. A. BUCKNER, Contestee and Appellant.
1 — Election Contest — Appeal.—A judgment of the district court in an election contest declaring tlie election of a candidate whom the official returns showed had been defeated, is not an annulment of an election within the meaning of Gen. Stats., sec. 1569, so as to require the dismissal of an appeal taken more than thirty days after the rendition of the judgment.
2 — Same—New Trials and Appeals. — New trials and appeals in contested election cases are regulated by the civil practice act.
3 — Australian Ballot Law — Ballots.—Where the inspectors of an election failed to remove the strips containing the numbers from the ballots of a precinct before placing them in the ballot box, but it satisfactorily appeared that this was done through an innocent mistake on their part, they supposing that they liad removed them, and that the fact that the numbers were being left on the ballots was unknown to the voters, or to any one, until after the close of the polls, and that it consequently was not, and could not have been, used for the purposes of bribery or intimidation: Held, that this should not have caused the rejection of the ballots. (Belknap, X, dissenting.)
Appeal from judgment and order overruling motion for new trial, from District Court, Humboldt county; Q. E. Mach, District Judge, presiding.
The points sufficiently appear in the opinion.
Thomas E. Hay don and Robert M. Clarice, for Appellant:
Appellant relies on the proposition that the ignorance, mistake, or even fraud, of the members of the election officers (in this case there is not even a pretense of fraud) cannot deprive -the voter of his constitutional right to vote and have his vote counted. (Stinson v. Sweeney, 17 Nev. 310-322.)
Punctuating the inviolability of this constitutional privilege of the lawful voter, after due observance on his part of the requirements of registry and election laws, to cast his vote and have it counted, where there is no delinquency on his part, we cite: Davis v. McKeeby, 5 Nev. 370; Clayton v. Harris, 7 Nev. 64; State v. Findley, 20 Nev. 200.
Section 29 of the Australian ballot law makes it a felony for any public officer to willfully neglect or refuse to perform any duty enjoined on him by the act. Yet, if he does so, that does not make void the ballots of qualified electors. (McCreary on Elections, sec. 500.)
Very little attention is given to irregularities of election officers. Where only lawful electors are allowed to vote the malconduct of officers will not .make void the votes. (McCreary, sec. 187-205.)
As to the spirit in which the election laws should be construed in favor of the lawful voter., see McCreary, 135, 138, sec. 208, and Boioers v. Smith, 11 Mo. 45.
This case is on the Australian ballot law and Bristol’s Decisions of other courts of last resort, all tending to show that the trial court erred in rejecting the ballots of Rebel Creek, and all tend to show that the decision in Stinson v. Sweeney, supra, though made before the adoption of the-Australian ballot is still the law of the land in this and many other states with similar constitutions. (17 Col. 338; 31 Am. St. Rep. 304 and note; 130 Ind. 561; 30 Am. St. Rep. 254; 12 Col. 256; 129 N. Y. 395; 102 N. C. 456; 11 Am. St. Rep. 767; 30 Fla. 668; 32 Am. St. Rep. 46; 78 Mich. 545; 18 Am. St. Rep. 458; 146 Pa. St. 592; 28 Am. St. Rep. 814; 53 Kan. 594; 42 Am. St. Rep. 306, 313, 315.)
There are no marks on either of the rejected ballots such-as to furnish any proof or apparent indication that they were placed thereon for the purposes of identification, but they simply show an erasure of a mark or cross inadvertently placed opposite the name of the candidate the voter did not intend to vote for. (Ruttledge v. Crawford, 91 Cal. 526; 63 Tex. 390; 51 Am. Rep. 646; 135 N. Y. 522; 12 Col. 256; 92 Cal. 135.)
The burden of proof is always on the contestant of an election to show that he received more lawful votes for the office in question than his opponent, who is declared by the proper canvassing board to have been elected. (McCreary on Elections, sec. 424.)
The presumption of law is that the board of elections did its duty lawfully and correctly in deciding the number of lawful votes received by each of the contesting candidates and correctly decided which received the majority, and the burden of proof was on the contestant to overcome this prima facie case. (McCreary, sec. 465.) [Here follows argument on the facts and points not passed upon.]
David S. Truman, for Respondent:
After a full hearing upon the merits the lower court found and adjudged that the contestant was duly and legally elected. The contestee, being desirous of having a review of this case, prepared his statement on motion for a new trial and filed the same in the cause. The respondent then asked the court to refuse to allow said statement, on the ground that the statute regulating contests of election does not provide for a new trial motion, but only for an appeal. Thereupon the lower court, after considering the matter fully, determined that there had been no errors sufficient to warrant the granting of a new trial in case a new trial was a proper proceeding in this character of action, and sécondly that he had no power or authority under the statutes of this state to grant a new trial at all, and that to do so would be going beyond his jurisdiction,in the case.
There are two preliminary motions made by respondent: First — One to dismiss this appeal, and if this motion is well taken, the case must be at an end in this court. Second — In the event that said motion for a dismissal does not prevail, then the motion for a diminution of the record is to be considered, and should this motion prevail, their there is only the judgment roll before this court for its consideration, and in the event that neither motion should prevail, then the appeal, of course, must be determined and considered on the merits.
The court is asked to dismiss the appeal: (1) Because the appeal is not taken in the time required by the statutes governing election contests, and (2) because of the appeal not being taken within thirty days after the rendition of the judgment of the court. (Steel v. Steel, 1 Nev 27; 7 Nev. 106.)
The intention which is declared by all of the courts that have been called upon to adjudicate on contested election laws is that it is a summary remedy to speedily determine who are the duly elected officers of the people. (Webster v. Byrnes, 34 Cal. 277; Keller v. Chapman, 34 Cal. 635; Minor v. Kidder, 43 Cal. 229-237, in which the court says: “It is, therefore, not an ordinary adversary proceeding, for, as against the high public interest concerned, there can be no recognized adversary.”)
Another rule of interpretation applicable here is that where the later statute makes a special provision different from the former, the latter will govern. (V. & T. R. R. Co. v. Ormsby Co., 5 Nev. 341; Gillette v. Sharp, 7 Nev. 245.)
It must be considered here that if the legislature desired that the practice act relative to appeals should apply where the decision was against the person holding the certificate, it would have added no further provision in the election law changing the provision of such practice act relative to appeals in the case mentioned. (14 Cal. 503.)
The design of the election statute is determined in Saunders v. Haynes, 13 Cal. 145-151; Gerrard v. Gallagher, 11 Nev. 386; Thorpe v. Schooling, '7 Nev. 15; Arnold v. Stevenson, 2 Nev. 234; 6 Nev. 108; 7 Nev. 19; 24 Cal. 449; 29 Cal. 416.
The district courts of this state have no jurisdiction of election contests by virtue of the general jurisdiction conferred upon them by the constitution or' statutes. (Gen. Stats. 2439; Const., art. VI., sec. 6; Gen. Stats., sec. 137.) The jurisdiction is only conferred by the statutes governing election contests. (Gen. Stats., sec. 1563.) Neither the constitution nor the statutes give any right of appeal, in so many words, as our constitution and statutes do, in the state of California. (Code of Civil Procedure, sec. 963; Knowles v. Yates, 31 Cal. 83.) The position taken by counsel that this is a “case” within the meaning of the constitution and laws of this state is erroneous. (Dorsey v. Barry, supra; Iiayne on N. T. & Ap., sec. 172.)
The position also taken by counsel that the word “annulled” as used in sec. 1569, Gen. Stats., means the entire abrogation of a general election, is not sustainable or reasonable when considered in connection with the other sections of the act. This is more_ clearly shown by reference to section 1561. Section 1560 is also directly contradictory to counsel’s contention. See, also, sections 1562,1567,1569. Section 1695 does not declare the election shall all be set aside, but that the office becomes vacant, * * * and the certificate, if any has been issued, is void.
The foregoing motion failing, there should be a diminution of the record in this case by striking'out the statement on motion for a new trial and everything but the judgment roll. In support of this, see Hayne on N. T. & Ap., sec. 5; Dorsey v. Barry, 24 Cal. 449; 24 Cal. 457.)
When our legislature so adopted their law and did not make any provision for a new trial being had in these special proceedings, there can be no doubt of the intention of the legislature that there should be no new trial had (2 Nev. 199; 8 Nev. 312; 1 Nev. 533; 5 Nev. 24; 18 Nev. 254-63.)
The action of the lower court on this matter is coram non judice, and the same should be stricken from the records of the case because a new trial not being proper no such statement can be of any avail to appellant. It does not purport to be a statement on appeal and cannot be treated as such by the court. (Robinson v. Benson-, 19 Nev. 331; Nesbitt v. Qhisholm, 16 Nev. 40; Williams v. Rice, 13 Nev. 234.)
There is no error appearing upon the judgment roll, and the repeated decisions of this court are that in such case the judgment appealed from will be affirmed.
When the ballot was given to the voter the number of such ballot was written by the clerk upon the. registry list in compliance with section 19 of the act of 1891, p. 44, and all being done in compliance with that and section 20 up to this point everything appears to have been regular and in conformity with law concerning the Rebel Creek precinct. The remaining portion of section 20 regarding the disposition of the ballot and numbered strip being destroyed was not done, and now counsel for the appellant asks this court to declare such a ballot to be legal and to be counted. The lower court was right in excluding such ballots and refusing to count them. , To uphold counsel’s contention is to destroy the intention of the law, as well as the very language of the statute.
What is the constitutional right of the voter ? Certainly, to cast his ballot without the knowledge of any one as to how he has cast it or for whom he has voted. That which destroys the secrecy of the ballot destroys his constitutional right. The leaving of this number upon the ballot, whether done ignorantly, willfully or maliciously by the .inspector, is absolutely destructive of this right.
The legislature intended to prevent the counting of a ballot upon which the strip with the number was left and not detached before going into the ballot box, and is evidenced by the prohibition of section 26 where it is enacted that no ballot with marks printed, except as in the act provided, shall be counted. That this language is mandatory goes without saying. (Williams- v. Stein, 38 Ind. 89.)
Counsel lay some stress on the burden of proof lying with contestant. Originally it did, but when we gave to the court sufficient legal reason for the exclusion of the vote and rested our case, certainly the burden of proof was shifted.
Counsel claim that certain illegal votes were cast at Kennedy precinct. If so, we have made our case, they should have shown that they voted for the respondent. It devolved on them and not on us to do so. (Littlefield v. Newell, 27 Am. Rep. 156.)
It cannot be successfully claimed that all these votes which are alleged to be illegal should be deducted from respondent’s vote in Kennedy precinct. (McCreary on Elections, 2d ed., secs. 298-9, 300; Ellis v. May, 58 N. W. Rep. 483.)
Thomas E. Ilaydon and Robert M. Clarice, for Appellant, in reply:
Respondent took no appeal from the failure of the lower court to dismiss the motion for new trial, nor its failure to refuse the settlement of such statement. Even if the motion for new trial is overruled on the grounds that no motion for new trial lies in a contested election case, yet the statement can be used to review the judgment in the case, and, if any error is thereby disclosed, the judgment will be reversed. (Toivdy v. Ellis, 22 Cal. 630; 17 Cal. 518; -18 Cal. 203; 23 Cal. 530; 25 Cal. 154; 68 Cal. 363; 81 Cal. 399; 83 Cal. 622; 86 Cal. 235.)’ Compare, also, sec. 340 of our present civil practice act and sec. 284 of the practice act of the territory of Nevada (Stats. 1861, p. 363); sec. 346 of the California practice act and section 950 of the California code of civil procedure of 1874.
The court will perceive that the question of the validity of the ballots cast at Rebel Creek can be legitimately raised upon the demurrer to respondent's amended complaint as a matter of law, also upon the opinion'and decision of the judge as a matter of fact. But the attorney of appellant by no means abandons his position that appellant has all the rights and remedies under the civil practice act that any liti gant has in any other action. In all cases of contested elections for county or township officers the district courts of the respective districts have original jurisdiction to try and determine such cases. (Gen. Stats., sec. 1563.)
Where the district court has jurisdiction to try and determine a case in the first instance, the supreme court has jurisdiction to review its decision on appeal. (Klein v. Allenbach, 6 Nev. 162.)
The complaint in ordinary actions and the statement in an election case is the test of jurisdiction of the district court below and in the supreme court on appeal. Section 330 of the practice act (Gen. Stats. 3352), as amended in 1887, page 92, gives the right of appeal from a final judgment in an action or special proceeding within one year.
The intent of the legislature must be deduced from the language used, and the courts have no right to look beyond the language. (State v. Washoe Co., 6 Nev. 104; Thorpe v. Schooling, 7 Nev. 15; State v. Ross, 20 Nev. 61; Maynard v. Newman, 1 Nev. 271.) If section 1569, Gen. Stats., is ambiguous, the whole act should be examined to explain or remove that ambiguity. (2 Nev. 25, 234; 11 Nev. 109; 7 Nev. 191; 6'Nev. 283.)
Failure to appeal in thirty days would not rob the person declared ineligible of his right to appeal within the required time, nor prevent him from moving for a new trial within such time as provided by the procedure of the election laws, or, if not provided for in the election laws, then within the time provided for in the general civil practice act.
The fault of respondent’s argument is that he insists on applying the civil code of California that does provide an exact code of procedure to a county court, a court of limited and inferior jurisdiction that had.no power except in term time, and no power to continue its term or make an order out of term.
If the board of election does not perform the several acts imposed upon it, and puts the ballot in the box with the strip number on it, if such ballots are not counted, it will be left in the power of every election board in the state at every precinct to defeat and defraud every elector in the state of his constitutional right to vote and have it counted and be defeated of such constitutional right without any fault of his own. Could such an act of the legislature possibly be held constitutional? Davies Y.McKeeby, 5 Nev. 369; Clayton v. Harris, 7 Nev. 64; Stinson v. Sweeney, 17 Nev. 309; State v. Findley, 20 Nev. 198, all answer emphatically “no.” See, also, State v. 'Board of Ex., 21 Nev. 69.
The strip, by force of the provisions of the statute, is not a part of the ballot, and the words, marks and names that under the statute prevent a ballot from being counted are such as appear on the ballot. [Here follows argument on the facts applicable to the points.]
Under the constitution the district courts have jurisdiction in all cases in equity. (Gen. Stats. 137.) They have also the same jurisdiction under the statute (Gen. Stats. 2439), and to make such other orders as may be necessary and proper in the exercise of the jurisdiction conferred upon them by law. (Id. 2448.)
When there is a constitutional right, and no machinery provided to enforce it, the constitution, by necessary implication, confers on the court of chancery jurisdiction to protect and enforce the will of the people by suitable and proper procedure. (80 Cal. 362-4.) The cases cited by contestant —24 Cal. 449; 24 Cal. 457; 34 Cal. 635 — are practically overruled by 79 Cal. 483-6. This case also shows that the supreme court ordered a new trial (Id. 489). If the supreme court had jurisdiction to order a new trial it follows as a corollary that the superior court (which is now in California the co-equal of our district courts) had the jurisdiction and power to have granted a new trial in the first instance.
The supreme court ordered a new trial in Russell v. McDowell, 83 Cal. 82. Is it possible that an appellate court can order a new trial in the lower court, and that such lower court cannot correct its own errors on a motion and statement for new trial? In Coffey v. Edmunds, 58 Cal. 521, a motion for a new trial was made and overruled and an appeal taken from the judgment and order overruling the motion for new trial. Judging from the eminence of counsel engaged respondent would certainly have objected to any consideration of such motion for new trial had it not been a proper proceeding.
Statutes as to contesting elections are to be liberally construed that the will of the people be not defeated. (McCreary on Elections, sec. 396.) The case must be heard on the merits and show the incumbent was not elected in fact. (Id., sec. 397.) The weight of authority in this country is that the courts have general and original jurisdiction to inquire into the regularity and validity of elections. (Id., 345-7.) The court has the power to declare the election and order void and order a new election. (Id., sec. 461.)
[Here follows a long argument on the right of appeal.]
By the Court,
Belknap, J.:
Opinion on motion to dismiss appeal and strike out statement:
This is an election contest.
The parties were candidates for the office of district attorney for Humboldt county at the general election of November, 1894. According to the official returns, Gen. Buckner received the highest number of votes, and a certificate of his election was issued. Thereafter a contest was inaugurated by respondent, Lynip, and such proceedings had as resulted in a judgment of the district court in his favor, and against Buckner. A motion for a new trial was made in the district court by appellant, and denied by that court; and from the judgment, and the order denying the motion for new trial, this appeal is taken.
Respondent moves in this court to dismiss the appeal upon the ground that it was not taken within the time required by the statutes of the state for -an appeal to be taken in election contests. The motion is made upon the provisions of section 46 of the act relating to elections (Gen. Stats., sec. 1569), which reads as follows: "1569. Sec. 46. Whenever an election shall be annulled and set aside by the judgment of the district court, and no appeal has been taken therefrom within thirty days, such certificate, if any has been issued, shall thereby be rendered void, and the office become vacant."
The judgment was rendered February 20, 1895. The motion for new trial was denied upon the 11th day of May —more than thirty days thereafter. The judgment was to the effect that Lynip was the duly elected district attorney of- the county, and, upon his doing the acts required by the statutes to be done in such cases, was entitled to the office, etc. This judgment is not one in which an election has been annulled and set aside. The result of the election has been reversed in this: that Lynip, who was shown by the returns to the board of county commissioners to have been defeated, was declared elected by the judgment of the district court. But the election itself has neither been annulled nor set aside, but, on the contrary, it has been upheld. If it had been annulled, the statute declares, the office becomes vacant, and, if there is a vacancy, it must be filled as required by law. We do not understand counsel to admit that a vacancy does exist, but if the provisions above quoted are applicable to this case, and the election had been annulled, a vacancy in the office must be the result.
Our attention has been called to the meaning of the words "annulled and set aside," as employed in section 1561, Gen. Stats. The section is as follows: "1561. Sec. 38. When any election held for an office exercised in and for a county, is contested on account of any malconduct on the part of the board of inspectors of any precinct, or any member thereof, the election shall not be annulled and set aside upon any proof thereof, unless the rejection of .the vote of such precinct shall change the result as to such office in the remaining vote of the county." This provision is unimportant to the matter in hand. It states a principle applicable to all election contests; that is to say, that the person officially declared elected shall not be disturbed by vain and fruitless contests, and, unless a different result of the election can be reached, his election shall not be contested.
Respondent also moves the court to strike out all of the record in the case, except the judgment roll, upon the ground that the district court had no jurisdiction of the case after the entry of the judgment. The statute relating to elections (sec. 1524, et seq., Gen. Stats.) confers original jurisdiction upon district courts in this class of cases (sec. 1563), and' provides that a certified copy of the judgment of the supreme • court may be used as proof in certain cases; but, with these' exceptions, it is silent upon the subject. Nothing is said, in' direct terms, upon the subject of new trials or appeals; and, under these circumstances, we must look elsewhere for .the-mode of procedure. The civil practice act was adopted long-before the passage of the act relating to elections. It pro vides a mode for review upon motion for new trial or appeal in all cases tried by district courts, and in enacting the election law, it was unnecessary to provide for any further mode of procedure than the practice act furnished.
The decisions from California to which we have been referred are inapplicable to our statute concerning contested elections.
The motions are denied.