Garrard v. Gallagher

Contested Election.—The contest for members of the legislature can only be made in pursuance of the provisions of the statute, (2 Comp. L. 2555 to 2560, inclusive). The proceedings are special and under our statute the courts have no jurisdiction. Idem—Special Remedy.—Where the statute gives a special remedy it must be followed, and the proceedings thereunder in contested election cases are substantially different from any common law remedy. Idem—Costs.—In special proceedings costs will not be allowed except by legislative action. Nor will fees be given to the officers by the courts unless specially provided for by the statute. Idem—Remedy where Round..—As there is no provision made for the fees of officers or costs expended in a contest for members of the legislature, the remedy is left entirely to the discretion of the legislature.

Appeal from the District Court of the Eighth Judicial District, Esmeralda County. The facts are stated in the opinion. I. This contest is a special proceeding, and where its forum is a court proper, no further jurisdiction is obtained, or power granted, than flows directly from the language of statute. (Dorsey v. Barry, 24 Cal. 449.) No costs were recovered at common law. They were first given by the statute of Gloucester, 6 Edw., 1 C. 1, which has been substantially adopted in the United States. (State v. Kinni, 41 N. H. 238; Bouvier’s Law' I)ict., title costs, p. 370; Bacon’s Abr.-, Yol. 2, title costs.) II. 'When costs are allowed by the statute they only follow a j udgment in favor of a party. It would be necessary as a ground of recovery even under a statutory right to costs, to aver and show a favorable judgment. There is no necessity to bring a suit for costs, as there is a very plain and speedy way to collect costs, viz., to issue execution therefor, and the failure so to do in this matter shows the weakness of its foundation. The truth is, the contest is a public matter. (Minor v. Kidder, 43 Oal. 229.) I. The contest of plaintiff’s election was a special proceeding in the nature of an action inter partes, instituted by the defendant in a private capacity for his own benefit, and upon his failure he becomes responsible for costs. (Searcy v. Groio, 15 Cal. 117 et seq.; People v. Ilolden, 28 Cal. 123.) II. The mere fact that the legislative department has judicial authority to judge of the election and qualifications of its own members, does not oust the jurisdiction of the courts to hear and determine criminal charges, relating to false returns, tampering with ballots and returns, purchasing votes, illegal voting, etc. (2 Comp. Laws, 2588 to 2595, inclusive; Const. Nev., art. 4, sec. 10.) Then why should such jurisdiction to hear and determine an action on the case for a v'rongful and groundless contest, instituted, perhaps, through malice, by a defeated candidate, be ousted ? The legislature has no power to punish for such offenses; its functions are to enact laws, not to execute them. An attempt to hear and determine criminal charges, actions in tort, or on contract, would be an.unwarrantable usurpation of judicial authority. (Const. Nev., art. 3, sec. 1.) The legislature has no power to hear and determine or to provide for offenses and misdemeanors (except for contempt of itself); its functions are to enact laws, not to execute them. (Const. Nev., art. 4, sec. 1, ubi supra.) III. Where a case is tried in the usual manner, between a petitioner claiming his seat and the sitting member, the parties carry on the- contest, but neither of them recover any costs against the other. (Cush. Pari. Law, 77, sec. 212.) But this case does not come within the rule, for the reason that the contestants abandoned the contest. IY. Where the investigation into the merits of an election, or the rights of a member to his seat, is set on foot by the assembly itself, and not at the solicitation of any claimant of the seat, the assembly either defrays the expense out of its contingent fund (if it has one), or takes measures to obtain the passage of a law for that purpose. (Cush. Pari. Law, 77, sec. 212.) In the case under consideration, the investigation into the merits of the election, or the rights of the member to his seat, was not set on foot by the senate, nor were the costs incurred under the direction of the senate, nor in jmoceedings had of its own motion before it. Y. The contestant takes away from the respondent his right to look to the senate to be reimbursed for the sums which he is caused to pay as witness fees and mileage, and for fees of officers, in the matter of defending in said contest (Cush. Pari. Law, 77, sec. 212), by instituting the contest in a private capacity in his own name and for his own benefit (People v. Holden, 28 Cal. 123); also, by his failure to prosecute the contest before the senate. The fees and mileage of sheriff, clerk,' justices of the peace and witnesses are payable in advance if demanded, and a failure to so demand such fees, etc., if such failure occurred, does not work a forfeiture of such fees and mileage on the part of such officers or witnesses. (Comp. L., 2735, 2737, 2739, 2742, 2746, 2758, 2548.) The assignee of such demands acquires, by the assignments properly made, the same rights in respect to said demands that was' vested in the assignor.