Schneider v. Bray

• Decision Date: 15 February 1895
• Docket Number: 1,422.
• Citation: 39 P. 326,22 Nev. 272
• Parties: SCHNEIDER v. BRAY.
• Court: Nevada Supreme Court

39 P. 326

22 Nev. 272

SCHNEIDER v. BRAY.

No. 1,422.

Supreme Court of Nevada

February 15, 1895

Appeal from district court, Ormsby county; Richard Rising, Judge.

Action by Henry Schneider against C. E. Bray to contest defendant's election to the office of county commissioner. From a judgment entered on an order dismissing the action, plaintiff appeals. Reversed.

Alfred Chartz, for appellant.

Torreyson & Summerfield, for respondent.

BONNIFIELD J.

Henry Schneider and C. E. Bray were candidates at the last general election for short-term county commissioner of Ormsby county. Upon the county commissioners of said county making an abstract of the votes, it appeared that the defendant had the highest number of votes cast for said office, and he received a certificate of election therefor. This action was brought in the district court of Ormsby county to contest the election of the defendant, on the ground of malconduct on the part of the board of inspectors, or members thereof, of election precinct No. 2. Such malconduct is alleged, in the plaintiff's statement or complaint, to consist "in calling and counting votes for and in behalf of said C. E Bray which were in reality cast and should have been called and counted for and in behalf of the plaintiff, and the said board have otherwise failed to count votes cast for and in behalf of said plaintiff, which all of said votes, if correctly called and counted, would have been sufficient in number to elect said plaintiff, Henry Schneider, to said office of county commissioner." The defendant, by his answer, denies each of the above allegations in the complaint. The defendant moved the court below to quash the statement or complaint of the plaintiff, on the ground, among others, that it "does not state facts sufficient to warrant the court in hearing any testimony or considering the same." The motion was denied by the court. The plaintiff, to maintain the issues on his part, offered to introduce in evidence the ballots cast at election precinct No. 2, and asked to have them counted. The defendant objected to the introduction of the ballots, "on the ground that the same are incompetent, immaterial, and irrelevant, and not tending to prove any issue in the proceeding." The court refused to admit the ballots in evidence, on the ground that they are "utterly immaterial," and ruled that the plaintiff "must first prove that ballots were called and counted for Bray which should have been called and counted for Schneider." The plaintiff, by his attorney, stated to the court: "We have no such evidence, except the ballots themselves, which we now offer for that purpose." The court thereupon ordered the action dismissed, at plaintiff's costs. This appeal is taken "from the judgment therein made and entered, and ruling excluding evidence offered by plaintiff and order dismissing the action"; and this ruling and order are assigned as error. That the ballots had not been tampered with, but remained the same as they were when cast we understand, is not disputed. No suggestion was made to the contrary in the court below, and none has been made in this court.

If the members of the board of inspectors had been examined as witnesses as to whether any ballots cast for Schneider had been called and counted for Bray, they would have, doubtless, testified that the ballots were counted as they were cast, and they would have properly so testified if they were not conscious of making any mistake in the calling and counting, and still an erroneous canvass of the votes might have occurred to the extent of changing the result of the election. While such testimony would be good and satisfactory evidence of the honesty of their intention, it would not be conclusive that the alleged errors in calling and counting had not been committed. The evidence offered by the plaintiff was not to prove the quality of the inspectors' intention, but to establish his alleged facts. Upon the authority of the Kneass Case, 2 Pars. Eq. Cas. 553, cited in respondent's brief, the voters themselves could not have been compelled to disclose for whom they voted, even if their testimony was competent, and the plaintiff had resorted to that character of proof. The court ruled to the effect that it was proper for the plaintiff to prove that "ballots were called and counted for Bray which should have been called and counted for Schneider," but that he must do this before he would be permitted to introduce the ballots which the plaintiff had offered for the purpose of proving these alleged facts. If such proof had been made aliunde, a resort to the ballots would not have been necessary or material. The public interests imperatively require that the ultimate determination of such contest should in every instance, if possible, reach the very right of the case. It is the wholesome practice of the statute to invite inquiry into the conduct of popular elections. Its aim is to secure that fair expression of the popular will in the selection of public officers, without which we can scarcely hope to maintain the integrity of our political system. Minor v. Kidder, 43 Cal. 236; Lord v. Dunster, 79 Cal. 478, 21 P. 865. The true result of the election is the object to be sought. The returns of the inspectors of election are prima facie true, but, when the returns are impeached, the ballots are the primary and controlling evidence of the true result.

In the case at bar oral...