Norcross, J.,
concurring:
I concur in the order denying the application of counsel 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 reasons heretofore given and stated in the opinion of the chief justice.
I also concur in the order sustaining the objection of the offer of the ballot box and contents of one of the precincts of Lyon County, for the reasons stated in the opinion of the chief justice. I do not, however, concur [11]*11in the views expressed in the opinion of the chief justice that ballots and other election returns may not under any circumstances be admitted in evidence upon the proper certificate of the county clerk. Had the offer of the Lyon County precinct been in proper form, I think the same would have been admissible.
The ballot box and its contents, together with the other election returns, of the Lyon County precinct were produced in court by the clerk of that county under regular subpena.
[4] The language of the statute is plain and unambiguous, and there is no room for construction so far as its provisions are concerned. If ballots and other election returns are public documents, then, under proper conditions, they may be admitted in evidence if duly certified. That they are public documents, I think, is without question under the definition and authorities cited in the opinion of the chief justice.
The argument made by counsel for respondent to the effect that election returns ought not to be admitted in evidence upon the mere certificate of the clerk, and that it shifts the burden of proof, goes to the wisdom of the statute rather than to the force and effect — a matter with which the courts have nothing to do.
The contention of counsel for respondent, to the effect that a county clerk has no right to permit the ballots to be removed from his office and custody except upon a subpena requiring them to be produced before the court in an election contest, and that for him to certify to the same and then to deliver them to some person or carrier to be brought into the court, under all circumstances, would be contrary to law and in violation of his duty as an officer, cannot, I think, be sustained.
I think it manifest from the provisions of section 1795, Rev. Laws, referred to in the opinion of the chief justice, especially in view of the many other provisions of law for safeguarding the purity of the ballot, that the legislature intended that the ballots should remain in the custody fixed by law, except when their removal was specifically [12]*12authorized by some court, board, or body empowered to examine the same in case of an election contest. I also think it manifest that a clerk would not be authorized to certify to the same and, without a subpena commanding their production or other authorization of the court, board, or body conducting the contest, proceed of his own volition, independent of such subpena or authorization, to send them to such court, board, or body.
Under certain circumstances, I think a court conducting a contest would be justified in permitting election ballots and returns to be certified and forwarded under prescribed conditions securing their safety, without requiring the presence of the clerk under subpena. For example, should both sides of a contest for a state office- so stipulate, the fact that it was agreeable to the parties, taken in connection with the saving in expense to the litigants, might justify the court in permitting such procedure. Other situations might present themselves in which such a procedure would be appropriate. Even then, should a clerk refuse to transmit the ballots, resort would have to be had to the only lawful method of compelling their production by subpena.
Where a clerk of a distant county is required to produce the ballots under subpena, the usual and practically the only feasible method for him to bring them is to intrust them to the care of the express company. Most of the ballots introduced in this case have been so transported. As a clerk must resort to some safe agency to transport the election returns, I see no reason why a court may not prescribe such an agency as an arm of the court. Cases may arise in which there may be no objection to such procedure; convenience and the saving of great expense may commend it to all concerned.
In the present case there is strenuous objection to the production of the ballots except by the clerk personally. There does not appear to exist such a condition as, notwithstanding such objection, would warrant the court in permitting the production of the ballots in any other way.
[13]*13Talbot, J.,
I concur in the order as stated in the opinions of the chief justice and Justice Norcross.
Whether ballots be considered public documents or not, under the adverse contention of counsel, would seem to be immaterial, if effect be given to the language of section 1795. If it be admitted that they are public documents, and are admissible in evidence on the certificate of the legal keeper under section 5409 if he appears in court with them in a pending contest and they have been in proper custody until so presented as provided by statute, and I believe they are- because they pertain to public elections and public offices, nevertheless, when they are not presented by the' proper official custodian, the same presumptions regarding their validity, and that there has been no opportunity for interested persons to tamper with them, and for warranting their admission in evidence, do not prevail.
It is ordinarily requisite for the admission of ballots that it be shown that they have been kept in proper official custody. ■ While they remain in the possession of the officers, as directed by law, it is presumed that the officers do their duty and that the ballots are properly preserved; but for apparent reasons the same presumptions do not attach when the ballots are given over to the possession of persons who are not under official oath or obligation, or who may have a direct or important interest in a contest for a public office depending upon the ballots. Although many contestants possess such a high degree of honor that they would not change the bailouts if the custody were given over to them, other contestants might be so void of principle as to change enough ballots to turn the election in their favor if .given the opportunity, which would result in allowing them to have the sole possession of the ballots before they are presented to the court as evidence. The law is not based on the theory that all men are honest, and since a time long prior to the' adoption in this state of the Australian [14]*14ballot system, providing for secrecy in the casting of ballots by electors, we have had statutes guarding in official custody the preservation and secrecy of the ballots after they were cast, and prohibiting their inspection or custody by persons whose claim to office depended upon the ballots, or by the public or individuals other than the official custodian or tribunal hearing the contest.
Section 1795 of the Revised Laws is section 29 of the general act relating to elections, and as originally passed in 1873 (Stats. 1873, c.
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Norcross, J.,
concurring:
I concur in the order denying the application of counsel 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 reasons heretofore given and stated in the opinion of the chief justice.
I also concur in the order sustaining the objection of the offer of the ballot box and contents of one of the precincts of Lyon County, for the reasons stated in the opinion of the chief justice. I do not, however, concur [11]*11in the views expressed in the opinion of the chief justice that ballots and other election returns may not under any circumstances be admitted in evidence upon the proper certificate of the county clerk. Had the offer of the Lyon County precinct been in proper form, I think the same would have been admissible.
The ballot box and its contents, together with the other election returns, of the Lyon County precinct were produced in court by the clerk of that county under regular subpena.
[4] The language of the statute is plain and unambiguous, and there is no room for construction so far as its provisions are concerned. If ballots and other election returns are public documents, then, under proper conditions, they may be admitted in evidence if duly certified. That they are public documents, I think, is without question under the definition and authorities cited in the opinion of the chief justice.
The argument made by counsel for respondent to the effect that election returns ought not to be admitted in evidence upon the mere certificate of the clerk, and that it shifts the burden of proof, goes to the wisdom of the statute rather than to the force and effect — a matter with which the courts have nothing to do.
The contention of counsel for respondent, to the effect that a county clerk has no right to permit the ballots to be removed from his office and custody except upon a subpena requiring them to be produced before the court in an election contest, and that for him to certify to the same and then to deliver them to some person or carrier to be brought into the court, under all circumstances, would be contrary to law and in violation of his duty as an officer, cannot, I think, be sustained.
I think it manifest from the provisions of section 1795, Rev. Laws, referred to in the opinion of the chief justice, especially in view of the many other provisions of law for safeguarding the purity of the ballot, that the legislature intended that the ballots should remain in the custody fixed by law, except when their removal was specifically [12]*12authorized by some court, board, or body empowered to examine the same in case of an election contest. I also think it manifest that a clerk would not be authorized to certify to the same and, without a subpena commanding their production or other authorization of the court, board, or body conducting the contest, proceed of his own volition, independent of such subpena or authorization, to send them to such court, board, or body.
Under certain circumstances, I think a court conducting a contest would be justified in permitting election ballots and returns to be certified and forwarded under prescribed conditions securing their safety, without requiring the presence of the clerk under subpena. For example, should both sides of a contest for a state office- so stipulate, the fact that it was agreeable to the parties, taken in connection with the saving in expense to the litigants, might justify the court in permitting such procedure. Other situations might present themselves in which such a procedure would be appropriate. Even then, should a clerk refuse to transmit the ballots, resort would have to be had to the only lawful method of compelling their production by subpena.
Where a clerk of a distant county is required to produce the ballots under subpena, the usual and practically the only feasible method for him to bring them is to intrust them to the care of the express company. Most of the ballots introduced in this case have been so transported. As a clerk must resort to some safe agency to transport the election returns, I see no reason why a court may not prescribe such an agency as an arm of the court. Cases may arise in which there may be no objection to such procedure; convenience and the saving of great expense may commend it to all concerned.
In the present case there is strenuous objection to the production of the ballots except by the clerk personally. There does not appear to exist such a condition as, notwithstanding such objection, would warrant the court in permitting the production of the ballots in any other way.
[13]*13Talbot, J.,
I concur in the order as stated in the opinions of the chief justice and Justice Norcross.
Whether ballots be considered public documents or not, under the adverse contention of counsel, would seem to be immaterial, if effect be given to the language of section 1795. If it be admitted that they are public documents, and are admissible in evidence on the certificate of the legal keeper under section 5409 if he appears in court with them in a pending contest and they have been in proper custody until so presented as provided by statute, and I believe they are- because they pertain to public elections and public offices, nevertheless, when they are not presented by the' proper official custodian, the same presumptions regarding their validity, and that there has been no opportunity for interested persons to tamper with them, and for warranting their admission in evidence, do not prevail.
It is ordinarily requisite for the admission of ballots that it be shown that they have been kept in proper official custody. ■ While they remain in the possession of the officers, as directed by law, it is presumed that the officers do their duty and that the ballots are properly preserved; but for apparent reasons the same presumptions do not attach when the ballots are given over to the possession of persons who are not under official oath or obligation, or who may have a direct or important interest in a contest for a public office depending upon the ballots. Although many contestants possess such a high degree of honor that they would not change the bailouts if the custody were given over to them, other contestants might be so void of principle as to change enough ballots to turn the election in their favor if .given the opportunity, which would result in allowing them to have the sole possession of the ballots before they are presented to the court as evidence. The law is not based on the theory that all men are honest, and since a time long prior to the' adoption in this state of the Australian [14]*14ballot system, providing for secrecy in the casting of ballots by electors, we have had statutes guarding in official custody the preservation and secrecy of the ballots after they were cast, and prohibiting their inspection or custody by persons whose claim to office depended upon the ballots, or by the public or individuals other than the official custodian or tribunal hearing the contest.
Section 1795 of the Revised Laws is section 29 of the general act relating to elections, and as originally passed in 1873 (Stats. 1873, c. 171) it had the same provision which is now in force: "That the ballots so deposited with the board of county commissioners shall not be subject to the inspection of any one except in case of contested elections, and then only by the judge, body or board before whom such election is being contested.” This section as orginally passed provided that the ballots and election returns should be directed to the clerk of the board of county commissioners. After an election contest for the office of county clerk, in which the election returns were overturned in favor of the incumbent by a recount of ballots which had been held in his custody, the legislature amended this section in 1879 (Stats. 1879, c. 112) by providing that if the clerk was voted for at the election the ballots and returns should be directed to certain other county officers in the order named in the statute, so that they would be deposited with an officer who was not a candidate and had no interest in the election resulting from the ballots.
It is, and long has been, the policy of the legislature to provide for the official custody of the ballots, as well as for their reception from the election officers by some county officer who is not interested as a candidate at the election. These statutory provisions were enacted to safeguard the ballots by requiring them to be in disinterested official custody and to avoid the dangers which might result from giving them over to the possession of other persons.
The rule is well settled that a later general law does not repeal an earlier special law relating to a particular sub[15]*15ject, and I do not believe that the legislature by passing section 5409, which provides that public documents may be admitted in evidence by the certificate of the legal keeper, had in mind or intended to repeal the clear provisions providing for the official and secret custody of ballots, nor that the provision that a public document may be admitted in evidence by the certificate of the legal keeper was intended to repeal the provisions of' section 1795 for the official keeping and secrecy of ballots, nor to authorize them to be turned over to contestants or other persons when the statute is specific in directing their official and secret keeping, and nowhere provides that they shall be turned over to contestants or individuals other than the officers specially authorized to retain them.
Whether ballots be considered public documents or not, as the law provides for their official and secret custody, and there is no authorization for turning them over to the contestants, it would seem that they are not admissible under the mere certificate of the clerk when they have been out of his official custody for a period of time after he made and attached his certificate, or at least unless evidence is supplied that they are in the same condition when presented to the court that they were when they left the custody of the clerk; and high authorities hold that they are not admissible even if such evidence is furnished, unless possibly in cases where the irregularity in their official keeping is slight. Mr. McCrary, in his work on Elections (4th ed.) at sections 471, 473, and 475, says:
"Where, as is the case in several of the states, the statute provides a mode of preserving the identical ballots cast at an election, for the purpose of being used as evidence in case of contest, such statute, and particularly those provisions which provide for the safe-keeping of such ballots, must be followed with great care. The danger that the ballots may be tampered with after the count is made known, especially if the vote is very close, is so great that no opportunity for such tampering can be permitted. Such ballots, in order to be received in [16]*16evidence, must have remained in the custody of the proper officers of the law from the time of the original official count until they are produced before the proper court or officer, and if it appear that they have been handled by unauthorized persons, or that they have been left in an exposed and improper place, they cannot be offered to overcome the official count. * * *
"So much depends upon the terms of the particular statute to be construed that it is impossible to lay.down a general rule applicable to all cases; but the better opinion seems to be that, if the deviation from the statutory requirements relative to the manner of preserving the ballots has been such as necessarily to expose them to the public or unauthorized persons, the court should exclude them; but if the deviations liave been slight, or of such a character as not necessarily to render doubtful the identity of the ballots, the question of their identity may well go to the jury to be determined upon all the evidence. * * *
"Before the ballots should be allowed in evidence to overturn the official count and return, it should appear affirmatively that they have been safely kept by the proper custodian of the law, that they have not been exposed to the public or handled by unauthorized persons, and that no opportunity has been given for tampering with them. ”
Although the law directs that the ballots be retained in the custody of the clerk, and he is not authorized to surrender them except upon subpena or order of the judge, body, or .board before whom the election is being contested, yet, if he does surrender them with his certificate, such certificate can only authenticate the ballots to the time that it is made, for it is impossible for the clerk to guarantee in advance by his certificate that the ballots will be in the same condition at some time in the future after they have been in the custody of other persons that they were when he surrendered them to others.
In view of these statutes, and the construction given by the courts to similar provisions relating to the secret [17]*17official keeping of ballots, I conclude that if the ballot boxes and contents be considered as public documents, and they are offered in evidence with the certificate of the clerk from the custody of some person other than the legal keeper, they are not admissible on such certificate alone, even if admissible in certain cases if evidence of their correctness is supplied, but that they are admissible on such certificate alone if the clerk keeps them in his custody until he presents them to the court with his certificate.