State ex rel. McMillan v. Sadler
| Decision Date | 20 September 1899 |
| Docket Number | 1,555. |
| Citation | 58 P. 284,25 Nev. 131 |
| Parties | STATE ex rel. McMILLAN v. SADLER. |
| Court | Nevada Supreme Court |
Action by the state of Nevada, on the relation of William McMillan against Reinhold Sadler. Writ of quo warranto refused.
Trenmor Coffin, A. E. Cheney, M. A. Murphy, Samuel Platt, E. D. Van Derlieth, and O. J. Smith, for relator.
Thomas Wren, William Woodburn, J. R. Judge, R. M. Clarke, E. L Sadler, and A. J. McGowan, for respondent.
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 duly qualified and entered upon the discharge of the duties of said office. 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 clearnes 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 obtained by an inspection of the ballots themselves to arrive at a correct conclusion.
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, instrudes into, or unlawfully holds or exercises, any public office or franchise. Gen. St. § 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. Id. § 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" (Laws 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 prosecuting officer to act, when such person's claim is based on such alleged facts as show him to be entitled to the office. By an oversight the legislature has failed to provide for such contingency. Its attention now being called to it, doubtless appropriate legislation will be had, and contestants and courts be relieved from such embarrassment.
Inspectors and Clerks. The statute (Laws 1873, p. 197, § 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 noncompliance 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, 23 P. 183; Paine, Elect. § 379; 6Am. & 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. By the terms of said act to promote the purity of elections, it is provided that the election of a person to office shall not be void, nor shall he be removed from or deprived of his office, by reason of the commission of any of the offenses prohibited by said act, if not committed by him, or with his knowledge or consent. 6 Am. & Eng. Enc. Law, 359, 360; McCrary, Elect. § 530; State v. Mason, 14 La. Ann. 505. And that it is well settled by authority that any irregularity in conducting an election which does not deprive a legal elector of casting his vote according to law, or admit a disqualified person to vote, or cast uncertainty on the result, and has not been ocasioned by the agency of a party whose right to office is in contest, shall not vitiate the election. Gass v. State, 34 Ind. 425; Cooley, Const. Lim. (6th Ed.) 777, and cases cited.
The Soldiers' Votes. It was alleged by the complaint that Troop A, 1st 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...
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