Wright v. Board of County Commissioners

*36 By the Court, Fitzgerald, J.: This is an original proceeding in this court for peremptory writ of mandate to the defendants and respondents above named that they proceed forthwith to recount the ballots east in Washoe county on the 4th of November last for the office of assemblyman, so far as said ballots concern the said petitioner, Mr. John W. Wright, and Mr. J. F. Souchereau. The facts, as they appear by the record, may be briefly stated as follows: An election was held on the 4th of November, 1902, in Washoe county, at which the said Wright and the said Souchereau were candidates for the office of assemblyman from Washoe in the legislature that will convene at Carson on the 19th of this month. On the 11th of November last, the said defendants and respondents met as a board of commissioners and canvassed the vote of said county, declared that the said Souchereau was duly elected to hold office by a majority of three votes, and ordered the clerk of the said board to make out a certificate of election, and hand the same to him on his demand therefor. On the 13th of last November Mr. Souchereau demanded and received said certificate. On the 15th of last November Mr. Wright filed with the clerk of said board his demand and affidavit for a recount of the votes cast for himself and also those cast for Mr. Souchereau. On the 1st day of December last the said board met, took up the matter of Mr. Wright’s demand for a recount, and laid it over until the 5th day of December last. On the 2d day of December last Mr. Wright filed with the clerk of said board another demand and affidavit for a recount of said votes. On the 5th day of December last the said board denied the demand or demands for a recount. The statutory provision governing the matter is section 2116 of the Compilation of 1900, as follows: "2116. Sec. 13. The board of county commissioners shall also act as a board of canvassers, declare election returns, and cause a certificate of election to be given by their clerks to any person who shall be elected to any legislative, county, or township office within their county; provided, that when the elec *37 tion shall be held for legislators or county commissioners, the district judge or judges shall canvass and declare the election returns for such legislators or commissioners, for which purpose all election returns shall be sealed and delivered according to law, to the county clerk, and by him opened in the presence of the district judge or judges, who shall declare .the result as to the legislators or county commissioners, and the clerk shall give to such persons elected as legislators or county commissioners a certificate of his election, and the board of county commissioners shall then canvass the returns as to other offices; and, provided further, that when said board of county commissioners shall have canvassed the vote for legislators, county and township officers, and it shall appear from such canvass that any legislator, county, or township officer voted for at such election has received a majority of ten votes, or less, in such case upon the application of the defeated candidate for such office, setting forth, under oath, that he has reason to believe and does believe that a mistake or mistakes have occurred on the part of the inspector of election in any election precinct or precincts in said county sufficient to change the result of such election so far as said office is concerned, it shall then be the duty- of said board of county-commissioners to immediately proceed to recount the ballots for said office of any or all the precincts in said county wherein any mistake or mistakes are alleged to have occurred, and shall continue such count from day to day (Sundays excepted), until the votes of all the election precincts wherein any such mistake or mistakes are alleged to have occurred shall have been counted, and when said count is completed shall declare the result, and issue the certificate of election to the party entitled thereto, as determined by their said count, but they shall in no case be allowed to throw out any ballot upon any alleged legal defect, if from the face of such ballot it can, upon inspection, be ascertained for whom the elector intended to cast his ballot; and, provided further, that nothing herein contained shall prevent either party to said proceeding to contest the right to said office in the courts, in the manner now prescribed by law.” (As amended Stats. 1877, p. 83, and Stats. 1879, p. 118.) *38 On a proper interpretation of certain parts of this section the rights of the parties to this proceeding depend. Some obscurity, and perhaps contradiction, in the terms in which the statute is expressed, exists. In the first part of the section it is- said: "Provided, that when the election shall be for legislators, * * * the district judge or judges shall canvass and declare the election returns for such legislators.” Thus far it would seem that the county commissioners are given no authority to canvass or declare the election returns for legislators, that duty being by the law cast on the district judge or judges. Further on, however, in the section, the language of the statute assumes that the board of county commissioners have the power to canvass and declare election returns for legislators. The language is as follows: “ And provided further, that when said board of county commissioners shall have canvassed the vote for legislators, * * * and it shall appear from such canvass that any legislator * * * voted for at such election has received a majority of ten votes or less, in such case, upon the application of the defeated candidate for such office * * * it shall then be the duty of said board of county commissioners to immediately proceed to recount the ballots for said office. * * * ” All parties in this proceeding have assumed, as the statute itself assumes, that the board of county commissioners had the right to make the canvass and return that it in fact did make. As the rights of all concerned in this proceeding depend on the correctness of said assumption, we shall pro hac vice make the same assumption, and proceed to consider the contention of counsel herein. If we correctly understand counsel for respondents, it is admitted by him that the petitioner once had a right to recount the ballots, the majority against him being only three, but that through delay in asserting it the right was lost. The contention is: (1) That after the board had on the 11th of November, 1902, met, canvassed and declared the vote, and made its order on its clerk to issue a certificate of election to Mr. Souehereau, and adjourned, then the members thereof were, so far as a canvassing board, funoti officio, and that they had no further power over the matter, and that the *39 demand and affidavit of Mr. Wright ■ did not revive any former or confer any new control over the matter; and (2) if the board’s control over the matter did not cease on its said adjournment on the said 11th of November, it did on the 13th of November, 1902, when Mr. Souehereau demanded and received from the clerk of the board the certificate of his election. In support of his two contentions counsel cites a number of authorities, but none of them are applicable to the facts of this ease. In none of the cases cited was there a clause of the statute saying that a recount could be had, except the case cited from 117 Mass. 599 (Opinion of the Justices). In that ease the justices of the supreme judicial court of Massachusetts made "response” to the governor’s inquiry that he and his counsel, as the statutory canvassing board, ought, on demand, to recount the ballots of certain towns named, because the statute said on demand the ballots of those towns should be recounted by them; but that he and his said counsel ought not, on demand, to recount the ballots of certain cities named, because the statute made no provision for recounting the ballots of those cities. As to those cities, the law having made no provision for a recount, a recount could not be had, but as to the towns named a recount could be had, because the law did make provision for a recount as to them. The said justices ruled that the said governor and his counsel were fundi officio as to the ballots of the said cities, but not as to the ballots of the said towns. That case, when properly considered, is directly antagonistic to the contention of counsel here. To say that when the board of county commissioners met as a canvassing board on the 11th of November, made its canvass, declared the result, ordered the certificate of election to issue, and adjourned, at that moment the right to make demand for a recount was lost, is so to restrict the right to demand a recount under the statute as to render it comparatively worthless. Until the declaration of the result, a defeated candidate could not make demand, because he could not until then know that the declaration would be against him. As in this case the declaration and adjournment took place on the same day, and, it may have been, *40 the one event following the other in rapid succession, such an interpretation of the statute would practically give no time at all in which to make a demand for a recount. The statute does not make any express limitation of time in which a demand for a recount may be made. It might be, perhaps, beneficial if the statute were made definite in this respect, and in other respects also cleared of obscurities and uncertainties; but that is a matter for tribunals other than this court. The situation was not materially changed by Mr. Souchereau’s receipt of his certificate of election on the 13th of November. Without attempting to declare in general terms when, in such cases, time to make demand for recount would cease — probably an impossible task — we simply say that in this case we think the time had not ceased on the 15th of November, when petitioner’s demand for a recount was filed with the board of county commissioners. Counsel makes another contention — that the mandate of this court should not issue, because the petitioner has another remedy, to wit, a contest before the legislature, above mentioned, under sections 1636 to 1640 of the Compiled Laws of Nevada of 1900. True, the petitioner has probably the right under said section to test the question whether he or Mr. youchereau is entitled to a seat in the said legislature, but that is not the question here. The question here is, did the petitioner, on the showing made by him, have the right to a recount of the ballots above mentioned? We think he had that right, and we know of no other way by which he would get it than through the action of said board in making the recount demanded. It is therefore adjudged and ordered that the mandate of this court issue to the respondents above named that they forthwith meet as a board of canvassers, and make the recount demanded by the petitioner, in accordance with the views herein expressed. Belknap, O. J., and Talbot, J., concur.