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McBride v. Giswold

December 31, 1914

A. G. MCBRIDE, PETITIONER, V. ISAAC GRISWOLD, ET AL., AS COUNTY COMMISSIONERS OF ELKO COUNTY, AND W. W. BOOHER, RESPONDENTS.


Klein & Hale, for Petitioner.

Carey Van Fleet and Geo. B. Thatcher, Attorney-General, for Respondent.

By the Court, McCarran, J.:

This is an original proceeding in prohibition, wherein the petitioner seeks to prohibit respondents Isaac Griswold, J. H. Peck, and Webster Patterson, acting as county commissioners of Elko County, from hearing, entertaining, passing upon, proceeding with, or doing anything with reference and respect to a recount of the votes cast at the November election in Elko County, so far as said votes concern petitioner, as a candidate for the office of assemblyman from said county, and W. W. Booher, also a candidate for said office.

As appears from the record, respondents, as members of the board of county commissioners, pursuant to law, met on the 11th day of November, 1914, and canvassed the vote cast in the several precincts of the county. As a result of said canvass, petitioner was declared elected to the office of assemblyman by a majority of three votes over W. W. Booher, candidate for the same office. Respondents, after issuing their order that the certificate of election be issued to petitioner, adjourned without date.

On the 5th day of December, 1914, W. W. Booher filed in the office of the county clerk of Elko County his petition in writing, wherein he states that he has reason to believe, and does believe, that a mistake or mistakes have occurred on the part of the inspectors of election in the election precincts of Carlin, in the said county of Elko, and on the part of the inspectors of the other precincts of said county, sufficient to change the result of said election so far as the said office of assemblyman is concerned; and,

[38 Nev. 56, Page 58]

further, that he has reason to believe and does believe that ballots were counted for the said A. G. McBride which should be rejected; and has reason to believe and does believe that a recount of all the legal and valid ballots cast in said election in said county will show that the said W. W. Booher received more votes than the said A. G. McBride. Pursuant to said declaration, the said W. W. Booher demanded a recount of all the votes cast in the several precincts of the county; the recount being demanded under the provisions of section 1513 of the Revised Laws of Nevada. Petitioner seeks by these proceedings to prohibit the board of county commissioners from recounting pursuant to the petition referred to.

[1] Section 1513 of the Revised Laws of Nevada is section 13 of an act entitled “An act to create a board of county commissioners in the several counties of this state, and to define their duties and powers.”

The portion of the section applicable to this case is as follows:

“The board of county commissioners shall also act as a board of canvassers, and 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; * * * 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

[38 Nev. 56, Page 59]

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 defect, if from the fact 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.”

It is the contention of petitioner that this section has been repealed by implication, inasmuch as the legislature of 1913 passed a general election law, entitled “An act relating to elections and removals from office,” citing therein Stats. 1913, p. 493, and we are referred to article 4, section 21, of the constitution, wherein it is declared: “In all cases * * * where a general law can be made applicable, all laws shall be general and of uniform [application and] operation throughout the state.”

It must be observed in this respect, however, that section 1513, Revised Laws, under the provisions of which the recount is demanded, is a specific statute, not only prescribing certain powers to be vested in the board of county commissioners, but also prescribing certain duties to be performed by that body. There is no direct or specific provision or section in the general election law of 1913 which attempts to meet the conditions, either as to the powers or the duties of the board of county commissioners, contemplated by section 1513. It is true that the general election law of 1913 contains certain specific repealing clauses, but none of these clauses, either ...


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