Warren v. Wilson
| Decision Date | 15 November 1922 |
| Docket Number | 2577.[a1] |
| Citation | 210 P. 204,46 Nev. 272 |
| Parties | WARREN v. WILSON. |
| Court | Nevada Supreme Court |
Appeal from District Court, Humboldt County; E. J. L. Taber, Judge.
Action by H. Warren against L. G. Wilson. From a judgment for plaintiff and an order denying a motion for new trial defendant appeals. Reversed.
Campbell & Robins and J. A. Langwith, all of Winnemucca, for appellant.
Warren & Hawkins, of Winnemucca, for respondent.
This is an appeal from a judgment rendered in favor of respondent and from an order denying appellant's motion for a new trial. Both of the parties were candidates in the recent primary election for the Democratic nomination for district attorney of Humboldt county. A certificate of nomination was issued to appellant by the board of canvassers of the county.
A motion to dismiss the appeal was made by respondent, upon the grounds: (1) That there is no finding by the lower court that appellant is a qualified elector of Humboldt county; (2) that no opening brief was served upon respondent within the time fixed by the order of the court; and (3) that no bill of exceptions was taken to the orders and rulings complained of by appellant.
As to the first contention, we may say there is no allegation in the complaint charging the appellant is not a qualified elector. On the other hand in his answer there is an allegation that he is such qualified elector, which is not denied by the reply. The question of his qualification is not therefore an issue in the matter.
The fact that the opening brief of appellant was not served upon respondent until two hours after the time fixed by the court is not jurisdictional, and it is not contended that the respondent was in any way injured. Rev. Laws 1912, § 5358. There is in the record a bill of exceptions, duly settled by the trial judge. The motion to dismiss must be denied.
The trial court found that there were only two candidates in the primary election for the Democratic nomination for district attorney--the appellant and the respondent. The court further found that there were 720 legal votes cast for the nomination of a candidate for district attorney, of which it found that Warren received 361 votes and Wilson 359 votes, thereby giving the former a majority of two.
The result of the appeal depends upon but one question, namely Did the lower court err in counting certain ballots cast for respondent, wherein the voter indicated his choice by making a cross opposite respondent's name with a lead pencil? The lower court admitted these ballots in evidence and counted them for respondent. If they had been rejected, it would have followed that appellant would have been declared the Democratic nominee for district attorney by the trial court.
It is contended by appellant that the pencil marked ballots should be rejected. We think this contention must be sustained. It is a well-recognized rule in this state that in arriving at the intention of the Legislature in enacting certain statutes we must ascertain the defects or evils of the former law and the remedy provided by the new law. Escalle v. Mark, 43 Nev. 172, 183 P. 387, 5 A. L. R. 1512. With this rule in mind, let us look to the history of our legislation on the requirements as to the marking of ballots. In the year 1898 the law provided that ballots voted in the general election should be marked with a black lead pencil. Growing out of the general election of that year was a contest for the office of Governor, which was decided by this court, and reported under the title of State v. Sadler, 25 Nev. 131, 58 P. 284, 59 P. 546, 63 P. 128, 83 Am. St. Rep. 573. One of the questions determined in that case was as to whether or not ballots marked with a blue pencil should be counted. The court, after observing that the chief purpose of the Australian ballot system then in use was to prevent fraud and corruption at the elections, made several allusions to the necessity of the "uniformity" of paper for the printing of ballots, of the printing of the same, and of the marking of ballots by the voters, finally saying:
This decision was rendered at the July term, 1899, of this court, and at the ensuing session the Legislature so amended our statute as to require voters to indicate their choice of candidates for office "by stamping a cross or X * * * after the name of the person for whom he intends to vote. * * *" Stats. 1901, p. 112. The action of the Legislature, following so closely upon the recommendation of this court, can be entitled to but one interpretation, and that is that it sought to require a uniform system of marking ballots by electors, and that such uniform marking should be by stamping, as indicated. This conclusion is, to our minds, too obvious to call for prolonged consideration at our hands.
A few years after this amendment, this court was called upon to pass upon an election contest in Strosnider v. Turner, 30 Nev. 155, 93 P. 502, 133 Am. St. Rep. 712, wherein the court, carrying out the theory of uniformity in the marking of ballots, held that a cross stamped upon the ballot after the name of the candidate, but outside of the square intended for it, should not be counted; and in the more recent case of State v. Baker, 35 Nev. 300, at page 317, 129 P. 452, at page 457, this court refused to count pencil marked ballots, simply saying: "Ballots having the following defects are also rejected: Crosses made with lead pencil or pen. * * *"
In rejecting these ballots without further comment, the court evidently concluded that the purpose of the Legislature to require that all voters should indicate their choice by stamping the ballot was so clear that there was no room for interpretation or construction. And this was a reasonable view for the court to have taken. For us now to hold otherwise would be to nullify the clear import of the statute. If one voter...
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Warren v. Wilson
...Appeal from District Court, Humboldt County; E. J. L. Taber, Judge. On petition for rehearing. Petition denied. For former opinion, see 210 P. 204. J. Langwith and Campbell & Robins, all of Winnemucca, for appellant. Warren & Dignan, of Winnemucca, and McCarran & Mashburn, of Reno, for resp......