Appeal from the Seventh Judicial District Court, Esmeralda County; Mark R. Averill, Judge presiding.
P. F. Carney and J. F. Kunz, for Appellant.
Thompson, Morehouse & Thompson, for Respondent.
At the primary election held September 3 in Goldfield township, as candidates for the Democratic nomination for justice of the peace, Marvin Arnold received 278 votes, Adams F. Brown 287 votes, and John H. Dunn 288 votes, according to the canvass of returns made by the board of county commissioners on September 7. Thereupon Adams F. Brown gave notice in writing to the
board that he would demand a recount of the ballots cast at the primary election on the following Monday, which would be within five days after the making of this canvass, and the board of county commissioners then and there made and entered an order to the effect that they thereby refused, and would refuse, to grant a recount of the ballots cast at the primary election. On September 9 Adams F. Brown filed in court the following document:
In the District Court of the Seventh Judicial District, State of Nevada, in and for the County of Esmeralda. In the Matter of the Office of Justice of the Peace of Goldfield Township, Votes at Primary ElectionPetition and Affidavit. Respectfully represents your petitioner, Adams F. Brown, that he is, and has been for several years last past, a duly qualified elector of the Second precinct, residing at 314 East Crook Avenue in the township of Goldfield in the county of Esmeralda and State of Nevada; that a primary election was held on Tuesday the third day of September, A. D. 1912, and at said election candidates were voted for in said Goldfield to be nominees of the various political parties, to be voted for at the next general election for the office of justice of the peace of said Goldfield township, and that your petitioner was one of the candidates so voted for; that on the seventh day of September the county commissioners made a canvass of the returns and announced that on the Democratic ticket for said office Marvin Arnold had received 278 votes, Adams F. Brown 287 votes, and John H. Dunn 288 votes, whereupon your petitioner gave formal notice of a request for a recount, which request the county commissioners upon the advice of John F. Kunz, deputy district attorney, refused to grant; that your petitioner has reason to believe and does believe that a mistake or mistakes have occurred on the part of the inspectors of election in precincts 1, 2, 3, 4, 5, 6 and 7, in said Goldfield sufficient to change the result of said election so far as said office is concerned. He therefore respectfully prays that all the ballots cast in said precincts for said office may be recounted and for such
further relief as to the court may seem meet and proper. Dated this ninth day of September, A. D. 1912. Adams F. Brown, Petitioner.
John H. Dunn moved to dismiss, moved to quash, and demurred to the petition and affidavit, on the grounds that there is a defect in the parties plaintiff and defendant; that no parties plaintiff or defendant are designated in the caption of the petition and affidavit; that the facts alleged in the petition and affidavit are insufficient to give the court jurisdiction or to warrant the making of an order granting any relief thereon; that the validity, accuracy and truth of the canvass of the returns or declaration of the election cannot be put at issue by vague, general, and indefinite charges such as those made in the petition; that the petition and affidavit shows upon its face that the contestee, John H. Dunn, received a plurality of all the votes cast; that the court is without jurisdiction to correct any mistakes of the count upon the facts alleged in the petition; and that the prayer of the petition and affidavit prays for no relief. The motions and demurrer were overruled.
An answer was filed, alleging, among other things, that on the 7th day of September, 1912, there was issued to John H Dunn, by the board of county commissioners, sitting as a board of canvassers of the votes at the primary election, a certificate of nomination on the Democratic ticket for the office of justice of the peace of Goldfield township, which was filed with the county clerk; admitting that Adams F. Brown filed a notice of intention to make a demand or application for a recount before the board of county commissioners of all the ballots voted in the primary election; denying that Adams F. Brown made any application to the board of county commissioners, sitting as a board of canvassers, setting forth under oath that he was a defeated candidate for such office, or that he had reason to believe, or did believe, that a mistake or mistakes had occurred on the part of the inspector or inspectors of election in any precinct or precincts sufficient to change the result of the election, or that any
demand sufficient in law was made upon the board of canvassers; denying that the petitioner, Adams F. Brown, has reason to believe, or does believe, that mistakes have occurred on the part of the inspectors of election sufficient to change the result, and alleging that the contestee has reason to believe, and does believe, that no mistakes have occurred on the part of the inspectors of any of said precincts sufficient to change the result of the election.
The answer also states: And for further answer, contestee, John H. Dunn, states that that part of section 1513 of the Revised Laws of the State of Nevada which purports to give the right of a recount of the ballots to a candidate having less than ten votes than his opponent is unconstitutional for the reason that said subject-matter relative to getting a right of contest is not germane to the subject-matter interposed, and the title of the act being as follows: An act to create a board of county commissioners, in the several counties of this state, and to define their duties and powers.' And he further states that this proceeding is an attempt to substitute the district court to perform ...