George Springmeyer, for Relators.
Cleveland H. Baker, Key Pitmann, and James R. Judge, for Respondents.
Relator J. W. Legate and Joe Josephs, respondent, were opposing candidates for the office of clerk of the supreme court at the general election in 1910. On the face of the returns respondent had a majority of 11 votes. This contest was brought on the 3d day of January, 1911. At the same time a contest for the office of attorney-general of the state was instituted on the relation of George Springmeyer against Cleveland H. Baker, who on the face of the returns had a majority of 65 votes over the relator Springmeyer. Both relators were represented by the same counsel as were both respondents, and stipulated that their causes should be consolidated and treated jointly, in so far as the interposition of objections and the rulings of the court and other matters pertaining to the conduct of the trial might be concerned.
 Respondents first appeared protesting against the information filed by relator and interposed a demurrer questioning the authority of the court in allowing the writ of quo warrantor, asserting that the court has no jurisdiction over the subject-matter of said proceeding, in that such proceeding can only be instituted in the name of the state on relation of and by the attorney-general of the state, and cannot be instituted in the name of the state on the relation of a private individual without the intervention of the attorney-general.
The court after due consideration of the contention of relator found it to be without merit (McMillan v. Sadler, 25 Nev. 165, 83 Am. St. Rep. 573), and on January 5, 1911, made an order allowing the proceeding in quo warrantor.
[2, 3] On the 31st day of May, 1911, a commissioner was appointed to assist the court in opening, examining, and classifying the ballots. Counsel for respondents questioned the authority of the court to make the appointment of a commissioner, which was overruled by the court in the following opinion delivered from the bench:
At the beginning of the contest in the above-entitled cause, after a demurrer and other motions and objections were overruled, and it appearing that in this contest an examination of some 25,000 ballots would probably be necessary, and it further appearing that in all probability approximately seventy-five per cent of said ballots would be free from objection of either of the parties to this contest, and the court being occupied with a heavy calendar of causes and other important official work, the court, in order to save several months of its time, believing it to be in the interest of the state that the time of the court should be consumed in other matters before them rather than in the examination of and passing upon ballots undisputed, under its authority made the following order appointing a commissioner: The court heretofore having signified their intention of appointing a commissioner to take charge of the counting of the ballots and report to the court any and all irregularities
appertaining to the same, and to report to the court any and all objections during the trial of the above-entitled cases, it is ordered by the court that George L. Sanford be, and he is hereby, appointed commissioner in the above-entitled cases. As such commissioner, he is empowered to count all the ballots offered in evidence to number in indelible pencil, and lay aside for each precinct, all ballots not clearly regular to which objection is interposed; to report to the court the number of ballots for each party to each proceeding to which there is no objection; to present to the court all the ballots to which objection is made; and to carefully preserve in the custody of the court, without change, otherwise than as marked for identification, all ballots which are offered in evidence.'
The authority of the court to make this appointment is questioned by the respondents herein. We have no question whatever of our authority to make such appontment. It is contended by the relators that we have the inherent power to make such appointment; but, be that as it may, it is unnecessary for us to pass upon this question for the reason that we find express statutory authority to have made this appointment under sections 3279 and 3280 of the Compiled Laws of Nevada, which read:
A reference may be ordered upon the agreement of the parties, filed with the clerk, entered in the minutes: First, to try any or all of the issues in an action or proceeding whether of fact or law, and to report a judgment thereon. Second, to ascertain a fact necessary to enable the court to proceed and determine the case.
When the parties do not consent, the court may upon the application of either, or of its own motion, direct a reference in the following cases: First, when the trial of an issue of facts requires the examination of a long account on either side; in which case the referees may be directed to hear and decide the whole issue, or report upon any specific question of fact involved therein. Second, when the taking of an account is necessary for the information of the court before judgment, or for
carrying a judgment or order into effect. Third, when a question of fact, other than upon the pleadings, arises upon motion or otherwise in any stage of the action; or, fourth, when it is necessary for the information of the court in a special proceeding.'
Under the authority of the above provisions the court has the unquestioned authority, without consuming its time, to appoint a commissioner to take a count of the ballots which are undisputed and to have him report to the court for its information the actual ballots in dispute as well as the fact and number of undisputed ballots.
As to how and by whom the commissioner appointed is to be paid, we are of the opinion that such compensation as may be due him for his services rendered is to be taxed as costs against the losing party to the contest.
As to the authority of this court to order relators to pay in advance such costs, as is suggested by counsel for respondents, we find no such authority. As we have held, supra, that costs were not recoverable at common law, and a party is liable for them only when their payment is required by express statutory provision, it follows that, in the imposition of costs on either party, the court must find some authority, and as there is no authority to be found warranting the court, in a proceeding of this character, to impose costs in advance of a hearing of the cause, or to tax them against one party, or the other, until a judgment carrying costs is awarded, we are of the opinion that the costs are to be taxed against the losing party. The commissioner or referee appointed by the court is, however, privileged, and it is his lawful right to withhold his report until such payment, as he may be entitled to and awarded by the court, is paid by the party calling for his report, to be introduced as evidence or used in ...