Ex Rel. Blake v. County Commissioners

*301 OPINION By the Court, Coleman, J.: This is an original proceeding in mandamus. The petition alleges that at the general election on November 4, 1924, L. J. Blake and V. E. Maher were opposing candidates for the assembly from Ormsby County, Blake being the Democratic nominee, and Maher the Eepublican nominee; that on November 6, 1924, the respondents assembled and canvassed the votes of said county. The petition also alleges: *302 “That on said date and at all times herein mentioned on ‘the combined poll and tally book, including challenge list, of the general election held in Ormsby County, in Carson City number one (1) precinct, on the 4th day of November, 1924,’ on page eleven (11) thereof, and in the thirty-third square of said page, appeared six marks or tallies for your petitioner; that said square was canvassed and counted by the respondents as five votes, instead of six votes, as marked in said square, for your petitioner, whereby your petitioner was deprived of one marked vote in the total for said precinct ; that the total vote of said precinct was canvassed by the respondents as one hundred seventy for your petitioner and one hundred forty-four for said V. E. Maher; that the total vote of the county was canvassed by said respondents as four hundred and seventy-two for your petitioner and four hundred seventy-three for V. E. Maher; that said respondents should have canvassed the vote of said precinct number one as one hundred seventy-one for your petitioner and four hundred seventy-three for your petitioner’s vote in said county, thereby making the count between the two candidates a tie; that the failure of said respondents to declare the vote a tie was due to their mistake in counting five votes in one square, instead of six votes in said square, as were plainly marked in said square; that on the 8th day of November, 1924, your petitioner demanded of said respondents that they declare the vote a tie, and that they order a recount of the ballots of said election; that the respondents knew that six votes were marked in said square above referred to, and nevertheless refused to declare said vote a tie, and refused to order a recount, and do still refuse to do so.” Section 25 of the general election law (Stats. 1917, c. 197, p. 358) provides that in the case of a tie vote for candidates for the assembly any of the persons receiving such tie vote shall have a right to demand of the board of county commissioners a recount of all of the ballots cast for the office for which such person was a candidate. The only question in the case is whether the petitioner *303 received in precinct No. 1, of Ormsby County, 171 votes, or only 170 votes, as shown by the totals on the tally list of that precinct which was sent to the clerk of the boárd of county commissioners by the election officers of the precinct. When the matter came on for hearing the petitioner offered evidence in support of his contention that he was entitled to have counted for him 171 votes, instead of 170. The evidence relied upon to sustain this contention was the tally list, which was returned by the officers of election in precinct No. 1 to the clerk of the board of county commissioners, which was resorted to by said board in making its canvass. In the thirty-third square of the tally list, which contains the record of the votes counted for the petitioner, are five perpendicular marks with a horizontal line drawn through them. The square mentioned is the second from the last one in which votes are recorded. Section 17 of the election law provides that a return shall be made to the clerk of the board of county commissioners, which shall include, among other things, one of the tally lists of regular ballots and one of the poll books. It also provides that: “The other poll books and tally lists shall be deposited with one of the inspectors of the election.” No evidence was tendered as to the tally list deposited with the inspector of election. It is said that the board of county commissioners, as a board of canvassers, should have ignored the footings as returned by the election officers, and been controlled by the tallies made in the tally sheet, allowing six votes in the thirty-third square. Our attention is directed' to the following authorities, pro and con: Rice v. Board of Canvassers etc., 50 Kan. 149, 32 P. 134; People v. Butler, 20 Cal. App. 379, 129 P. 600; People v. Murphy, 20 Cal. App. 398, 129 P. 603; Devlin v. Donnelly, 20 Cal. App. 495, 129 P. 607; Hughes v. Parker, 63 Kan. 297, 65 P. 265. Authority has to be lodged somewhere to add up the returns from the various precincts and to issue a certificate of election to the person shown, by adding the returns from the various precincts, duly certified to as *304 correct by the election officers, to be entitled thereto; and it may be that the legislature contemplated that the board of canvassers should do no more than add up such certified returns and issue the certificate to the person thus shown to be entitled thereto. It would be remarkable if the legislature contemplated that the certificate of the election officials, based upon all of the evidence possibly available, could be overthrown upon an inspection of only one of the tally lists, when that one might be easily changed, though the other is accessible. The Supreme Court of Colorado, in construing a statute similar to ours, took the view contrary to that urged upon us by petitioner’s counsel, holding that the tally lists were not a part of the certified return saying: “ * * * It certainly was not the purpose of the general assembly to allow mere tally sheets, which are not certified, which contain nothing more than strokes of pen or pencil, with respect to the number of votes cast for any candidate, and which can be readily changed to be taken as evidence sufficient to contradict the certificates, in case of a discrepancy between such certificates and the tally sheets.” People Ex Rel. Miller v. Tool, 35 Colo, on page 251, 86 P. 232, 6 L. R. A. (N. S.) 822, 117 Am. St. Rep. 198. This reasoning is cogent, but, since a determination of the contention is not necessary to a disposition of this matter, we decline to lay down a rule which should control in such a situation. It has repeatedly been held that mandamus will never issue, unless a clear, legal right to the relief sought is shown. State v. Noyes, 25 Nev. 31, 56 P. 946. Can it be said in this case that the petitioner has shown such a right? Section 2 of the general election law provides that the several boards of county commissioners in the state shall so arrange and divide the voting places in the county that no greater number than 400 voters shall vote in one precinct. The tally lists furnished the election officials are arranged into 80 squares, for the registration *305 of five votes in each for each candidate, or a total of 400. The tally lists are bound in the poll book, to which are attached directions and illustration showing the manner in which the votes shall be recorded and tallied by the clerks of election, from which it appears that in each square there should be four perpendicular lines and a line drawn diagonally across them to indicate the recordation of five votes for a candidate. There are three inspectors and two clerks of election in each precinct, and it is the duty of each clerk to record on a separate tally sheet the votes as announced by the inspectors, and the votes so recorded by the clerks should agree. In this manner of keeping a tally of the votes counted each clerk is a check upon the other, and their records are the basis for the return made by the said election officials. When public officials have acted, it is a presumption of law that they did their duty. This is a well-established rule. We must presume that the election officers inspected both of the tally lists and from such inspection found that the petitioner received 170 votes. We must accept this conclusion, until it has been made to appear by clear and satisfactory proof that petitioner in fact received 171 votes. Can it be said that such proof has been produced ? We think not. We do not think that the marks in the thirty-third square clearly show that the clerk who made that tally list intended to record therein six votes, instead of five. It might easily have happened that the clerk in question thoughtlessly put down the fifth perpendicular line before discovering that it was the fifth vote registered in the square, and, upon learning the fact, simply drew the horizontal line through the square without erasing the fifth line. The sole purpose in drawing the line across the perpendicular lines is to indicate that five votes have been cast, so that the totjal may be quickly ascertained and called a “tally,” and a clerk, discovering that'five perpendicular marks have been made, might naturally draw the line across without thinking it necessary to erase one of the perpendicular lines, *306 especially when it is recorded in ink as in the instant case. If we were to concede that the tally list, in question shows that the petitioner should receive 171 votes, it is evident that the tally list of the other clerk should show that, too. It is not probable that both clerks could have made a similar mistake. If this be true, it is almost certain that in totalling the votes a discrepancy between the results shown by the two- tally lists would have been discovered by the election officials, and the tally list in evidence would have been corrected to correspond with the other, and the total on it given at 171, instead of 170, if such officials had deemed the matter of consequence. Viewing the matter from any standpoint, we are unable to say that the petitioner has shown that clear legal right to the writ sought which would justify its issuance. It is ordered that the writ be denied, and that the proceedings be dismissed.