In re Moore

• Decision Date: 01 October 1948
• Docket Number: 3535.
• Citation: 197 P.2d 858,65 Nev. 393
• Parties: In re MOORE. v. MOORE. PECCOLE
• Court: Nevada Supreme Court

197 P.2d 858

65 Nev. 393

In re MOORE.

PECCOLE v. MOORE.

No. 3535.

Supreme Court of Nevada

October 1, 1948

Appeal from Eighth Judicial District Court, Clark County; Frank McNamee, Judge.

Proceeding by William Peccole to contest the election of Robert T. (Bob) Moore as Commissioner Third Class of City of Las Vegas. From a judgment for contestee and an order denying contestant's motion for a new trial, contestant appeals.

Reversed and remanded.

Lewis, Hawkins & Cannon and Jones, Wiener & Jones all of Las Vegas, for contestant-appellant.

George E. Marshall, of Las Vegas, for contestee-respondent.

BADT Justice.

In the city election of May 6, 1947, for the City of Las Vegas Clark County, Nevada, there were twelve candidates for Commissioner Third Class, 4-year term, for which office one was to be elected. Appellant and respondent were two of such twelve contestants. According to the election returns, appellant Peccole received 904 votes and respondent Moore 941-a plurality of 37 votes. Appellant (sometimes herein referred to as plaintiff and sometimes as contestant) commenced a statutory contest proceeding by filing his 'Statement of Contest' under the provisions of N.C.L. § 2506 et seq. The court below sustained respective demurrers to the original statement of contest the amended statement of contest and the second amended statement of contest, and the matter went to trial on the third amended statement of contest, the contestee's answer and the contestant's reply.

Contestant alleged that the election officials were guilty of malconduct in that they did willfully, intentionally, wrongfully and unlawfully reject certain ballots which should have been counted for contestant and counted certain ballots for contestee despite the fact that they were illegal for sundry reasons alleged in the allegations.

These were lack of water mark, excessive number of names voted for, impossibility to determine the voter's choice, names, words, erasures or marks upon the ballots, marks made by pen and ink, made by pencil, or by using the stamp as a brush or a marker, crosses stamped outside of the square provided, the use of more than one cross in certain squares, ballots mutilated or disfigured by erasures, etc., all of which markings, it was alleged, could be used as identifying marks. It was further alleged that had the votes been properly accepted, rejected and counted, contestant would have received the highest number of votes of any candidate for the office at said election.

Specific proof of misconduct was offered as to Precinct 9 and as to this precinct, as will hereafter appear, the trial court permitted the ballots to be opened and counted. The court refused however to permit the ballots in the remaining precincts to be opened and counted because there had been no proof of misconduct of the officials in such precincts. (Throughout this opinion we use the term malconduct or misconduct of officials as including and applying to the erroneous counting or rejecting of ballots, under the holdings of many cases. No willful wrong on the part of any of the election officials is anywhere suggested in the case.) Such refusal to open and count the ballots is the main error assigned in this appeal. The court's ruling was made largely in acceptance of the theory advanced by contestee that an enactment by our legislature in 1931 to the effect that it is presumed that official duty has been regularly performed amended our statutory election contest proceedings and was determinative of the accuracy of the count unless contestant proved misconduct aliunde.

The point urged upon the lower court, first, upon the respective demurrers to the original complaint, the first amended complaint and the second amended complaint and, secondly, upon the question of the admissibility of the ballots in evidence and thirdly, upon the plaintiff's motion for a new trial, and the point squarely presented to this court, is whether the 1931 amendment in effect made inapplicable the earlier holdings of this court. The Act is Chapter 50 of the Statutes of 1931 found at page 59 and entitled 'An Act to amend an act entitled 'An act to regulate proceedings in civil cases in this state and to repeal all other acts in relation thereto,' approved March 17, 1911, by adding thereto seven new sections to be numbered and designated sections 558a to 558g, inclusive, defining indirect evidence, inferences and presumptions, and repealing all acts and parts of acts in conflict herewith.' The Act defines and classifies indirect evidence, inferences, conclusive presumptions and presumptions that may be controverted. Section 558g, N.C.L.1931-1941 Supp.§ 9047.07, reads: 'All other presumptions are satisfactory, if uncontradicted. They are denominated disputable presumptions, and may be controverted by other evidence. The following are of that kind: * * *15. That official duty has been regularly performed * * *'

In offering the ballots in evidence (after establishing that the ballots and other election records were in the same condition as when delivered by the election officials to the city clerk and by the city clerk to the county clerk) and in answering defendant's objection to such offer, plaintiff's counsel insisted 'that under the pleadings in this case, the best evidence of the correctness of the count of the inspectors, and the commissioners, are the ballots themselves, by all the authorities in this state.' Counsel for the defendant objected to the admission of the ballots on the ground 'that the law of the state is that there is a presumption in favor of the fact that the official duty has been regularly performed * * * There is no testimony the contestee was deprived of any ballots whatever; there is no testimony that the contestant was given any ballot whatever * * * and we object to the offer to accept these ballots on the ground there has been no showing made that would overcome the law of the state that official duty has been regularly performed.' Counsel for the plaintiff insisted again that this court had held 'that the best evidence of what these things are is the ballots themselves.' The learned judge remarked that he had overruled the demurrer to the third amended complaint because its general allegations were sufficient as to the casting of 'illegal votes' (that is ballots by illegal voters, in which case the statutory notice was required to be served specifying the names of the illegal voters etc.), but that he considered the third amended complaint insufficient as containing only general conclusions as to malconduct on the part of the election officials. The court repeated that it had considered the third amended complaint sufficient as against a general demurrer because it contained specific allegations of malconduct as to Precinct 9, wherefore it was unnecessary then to determine 'whether malconduct on the part of the election officials of the precincts other than Precinct 9 [had] been set forth specifically so as to warrant the overruling of the general demurrer on this ground also.' The court then ruled that except as to Precinct 9 the ballots could not be opened 'because there is not specific enough allegation to show malconduct in the election boards of the other precincts.' It seems clear that the specification of error, because the ballots were excluded without prior proof of specific acts of malconduct, is to all intents and purposes the same specification as to the holding that the complaint was insufficient in failing to allege specific acts of malconduct. The alleged erroenous counting of ballots for the defendant and the alleged erroneous refusal to count ballots for the plaintiff was, as we have seen, deemed by the court to be a mere conclusion. The court continued, in ruling on the admissibility of the ballots: '* * * the only thing the court does reject in the way of the offer of proof at this time is the ballots themselves and the other records pertaining to the election now in the hands of the city clerk. * * * If you have other evidence of malfeasance or misconduct or something and would like to offer it, I will make my ruling.' Plaintiff then again reoffered the counted and rejected ballots for the various candidates and announced that he had no other evidence.

Before this court, respondent says frankly, with reference to his contention that it is necessary to allege and prove specific acts of malconduct (actual mistakes in counting the ballots) before the ballots themselves may be received in evidence, 'We do not assert that this has been the rule in the State of Nevada, and we contend most urgently that the law of these cases has been changed.' And again the respondent asserts: 'We do contend seriously that the law has changed and therefore, the reported decisions of the Supreme Court of our state to the contrary, * * * [we] should now adopt the rules that have been promulgated in other states where the statute designates that official duty has been regularly performed.'

Respondent could not do otherwise than concede frankly that the rule has been established in this state, contrary no the rule announced in some other jurisdictions, that when the election count is challenged by general allegations of misconduct (which we have held to include the erroneous counting of votes) the ballots themselves constitute the best evidence the primary evidence, the only evidence of the correctness of the count, and that proof of misconduct or error aliunde, as secondary evidence, is not a necessary foundation or basis for the admission of the ballots. This was definitely settled in Schneider v. Bray, 22 Nev. 272, 39 P. 326, wherein it appears that the precise point was urged and definitely passed upon. There, as in the present case, the...