State ex rel. Spring-Meyer v. Baker , 35 Nev. 1 ( 1912 )

By the Court,

Sweeney, C. J.,

dissenting in part:

[1] Counsel for relator. applied to the court for an order directing the county clerk of Storey County to certify to this court the ballots and other election returns of the several precincts of that county for the general election held in 1910. This application was made upon the following provision of section 467 of the new practice act (Rev. Laws, 5409): "A public record or document in the custody of a public officer of this state, in a public office, may be proved and admitted in evidence in any court by the certificate of the legal keeper or custodian thereof that it is genuine and authentic, and by his seal, if there be one annexed.” This motion was denied for the reason that there was no provision of law for such an order; the provision of the section in question affecting the admissibility of a certain character of evidence and not the method of its production in court. Subsequently, relator offered in evidence the ballot box of one of the precincts of Lyon County, to which was attached the certificate of the clerk in the following form: "State of Nevada, County, of Lyon — ss.: I, Chas. A. McLeod, county clerk of Lyon County, State of Nevada, do hereby certify that to the best of my knowledge and belief within this receptacle, which is so inclosed that it cannot be opened without destroying this certificate, there are contained all the election ballots cast in Sutro precinct, Lyon County, State of Nevada, at the general election held on November 8, 1910, and all the’ election returns, pollbooks and tally lists there used. And I do hereby certify that to the best of my knowledge and belief the said election ballots, returns, pollbooks and tally lists are genuine and authentic. In witness whereof, I have hereunto set my hand and affixed my official seal, at my office in said county, this 12th day of February, A. D. 1912. [Signed] Chas. McLeod, County Clerk of Lyon County, State of Nevada. [Seal.]” Objection to the offer was made by respondent upon several grounds. It was agreed that the offer and objection should stand for the purpose of a ruling and that the contest should proceed as it had theretofore been conducted until a ruling was made upon the offer.

[2] I think that the certificate attached to the ballot box offered in evidence fails to meet the requisites of the statute and is insufficient to authorize its admission in evidence. It fails to show that the box and its contents were in the custody of the officer and in his office, or that the box and its contents are the genuine and authentic election records and documents of the precinct in question. The certificate must meet the requirements of the statute before the records or documents are admissible as originals. The objection under consideration must be sustained upon the ground of insufficiency of the certificate.

In order, however, that the question desired to be presented by relator may be passed upon fully, in view of the fact that if the contest proceeds counsel for relator could present the same question by amending the certificate so as to comply with the provisions of the statute in so far as raising the point he desires passed upon, we will assume that a certificate meeting all of the contentions of counsel for relator was before us for consideration and give to the statute in question a construction upon the point urged by relator.

A careful reading and consideration of the election laws pertaining to the care, custody, and control of ballots must be given in connection with the section of the statute singled out by relator to support his contention.

The method of carrying on elections and election contests, the casting, care, custody, and preservation of the ballot, and in fact the whole subject of elections, have received as much time and consideration of our legisla-, ture as possibly any other one subject which has come before it for consideration. The issue of " Purity of Elections” and the desire to protect by law, in so far as legislation may do, and to give an untrammeled expression of the people’s will, free from all taint of fraud and corruption, has been as keenly urged in Nevada as in any state in the Union, and in consequence our legislature has attempted to not only provide for laws insuring an honest election, but to safeguard the ballot, which, when cast, is expressive not only of the popular will, but is the title proper to the office of the officer-elect.

[3] To protect this title our legislature, among other provisions of our election laws, by section 1795 of the Revised Laws, provides how the inspectors of election, after the ballots have been cast, shall file and make their returns, the manner of delivery and with whom the ballots shall be deposited and who shall be their custodian, and among other provisions in said section it is expressly provided: "After the ballots have been cast, counted and deposited * * * that the ballots so deposited with the board of county commissioners shall not be subject to the inspection of anyone, except in cases of contested elections, and then only by the judge, body or board before whom such election is being contested.” Having so provided, can it be said that the legislature intended to imply that ballots are "public records or documents” in the sense that they may be sent without the especial custody of the officer in charge of the same in violation of this particular statute, and, if so, forwarded to the court before which an election contest is being considered, and was it meant to imply that ballots, should be admitted in evidence without being produced by the custodian who is especially enjoined by law to retain them in his keeping until they shall be inspected by the "judge, body or board before whom said election is being contested”? I do not so believe. Neither do I believe that a ballot can be considered a "public record or document” in the sense and purpose contended for by relator under section 5409, supra.

The term "document” has a very broad significance, and has very properly been defined in Cyc., as follows: "That which conveys information; that which furnishes evidence, or proof; a written or printed instrument; an instrument upon which is recorded, by means of letters, figures, or marks, matter expressed and described upon it by marks capable of being read; any matter expressed or described upon any substance by means of letters, figures, or marks, or by more than one of these means, intended to be used, or which may be used, for the purpose of recording that matter; anything bearing a legible or significant inscription or legend; anything that may be read or communicating an idea (including thus a tombstone, a seal, a coin, a signboard, etc., as well as paper writings); all material substances on which the thoughts of men are represented by writing or any other species of conventional mark or symbol.” (14 Cyc. 824; Words and Phrases, vol. 3, 2153; Words and Phrases, vol. 6, 5786, 5818.) But to become or to be entitled to be considered a "public document or record,” in the sense our statute contemplates, it should meet the test which the plain, broad, ordinary conception of the word "public” implies, to wit, subject to open and public inspection and review. Our statute provides that ballots when deposited shall not only not be subject to "public” inspection, but expressly provides for their secretive custody and subject to the inspection of no one save the judges or others conducting an election contest. It is proper to observe, in this connection, that our legislature has never attempted to withhold from the inspection of the public any other "public document or record,” as generally understood by the public, and I do not believe that-they ever intended ballots to be considered "public documents or records” for the purpose sought by relator.

No authority has been cited to this court, nor have I • been able to find any, wherein a ballot or ballot box was ever considered a "public document or record,” for the purpose contended for by relator, and in view of the fact that ballots are not public in the sense that they can be viewed by every one or as " public documents or records” imply they may be and are subject to the inspection of none save persons expressly designated by statute, and compelled to be kept in secret file and custody, gives me reason to believe that no such authority can be found to sustain relator’s contention that they are. The ballots of a state electorate are in effect the title to the offices of those selected by the people, and are zealously and jealously guarded by law, and as a matter of public policy are rightfully surrounded with its every safeguard against loss or fraud. Nor do I believe that the custodians of the ballots prescribed by our statute would be authorized or warranted,, upon the stipulation of counsel in a contest case, to allow the ballots out of their custody, or to deliver them into the custody of others than as designated by law. The ballots not only represent the title -to the office involved in the contest, but are the title of all the other offices, and these officers as well as the public have rights which cannot be jeopardized or stipulated away contrary to the statute for the convenience or the possible saving of some expense of the contesting parties in a particular contest.

Instancing the legislative intent to preserve and conserve the evidence on which an officer-elect may rely,. when the title to his office is questioned, the fallacy of the position of counsel for relator may be more apparent when we illustrate that if we were to hold with relator that upon the mere placing of a certificate upon the ballot box, say by the county clerk of White Pine County at Ely, certifying that it contained the ballots of White Pine County, and upon their arrival in Carson City they were offered and would be by mere virtue of a certificate admissible in evidence, the court would have nothing before it save the certificate of the clerk at Ely certifying up to the time when he put the ballots out of his possession that the ballot box contained the will of the voters of White Pine County. From the time the ballot box would leave the county clerk of White Pine County, in whose care or custody would the ballots be until they arrived in Carson City and placed before this tribunal, before which the cdntest is being prosecuted? If the county clerk of White Pine County could turn them over to Wells-Fargo, he could turn them over to any corporation or person he saw fit, and send them by stage, horseback, or otherwise, as there is no statutory provision provided for the manner of sending them or for their care, if the law providing for their safekeeping, custody, and production before tribunals before which an election contest is pending is not to be considered and if the construction counsel for relator places upon the statute were allowed to prevail. After the ballots would arrive here, to admit them in evidence upon the certificate of the clerk as made in White Pine County would leave a gap of time and space wherein said ballots would be in the custody of another, expressly in conflict with section 1795, supra, and accordingly could not be admitted in evidence without a recertification of the county clerk that they were the same ballots to which he had formerly certified to in the city of Ely, after the proper foundation for their admission has been laid. That the legislature never intended that the custody and preservation of the ballots should be so lightly treated is apparent to any one reading the full- intent and spirit of our election laws which must be read in connection with the statute in question. To hold otherwise, I believe, would do violence to every safeguard that has been so zealously and jealously thrown about the casting, care, preservation, and secret custody of the ballots, and place a construction on the statute in question not in consonance with our legislation affecting elections and election contests and not in harmony with the well-settled rule of construction that a general law will not repeal a special law, relating to a particular subject, by implication, where it is manifest that the legislature did not so intend.

The application for an order directing the county clerks of the various counties to certify to this court the various ballots and election returns of the several precincts is denied, for the reason that there is no provision for such an order to be made, and the further application of relator to offer in evidence any ballots which may arrive without being in the care and custody of the officer designated by law will be denied until a proper foundation is laid for the introduction of the same as prescribed by the rules of evidence and by law.

Let such be the orders.