postoffice, to be transmitted by mail, taking from such postmaster, if it can be obtained, a certificate setting forth the time when such reports were deposited in the postoffice, which certificate the clerk shall file in his office. If the clerk of the board of county commissioners should neglect, or refuse to make out and transmit, the returns, or abstract, as required by this act, he shall be deemed guilty of a misdemeanor in office, and, upon conviction thereof, shall be fined in any sum not less than one hundred dollars, or more than five hundred dollars, and imprisonment in the county jall for not less than one month, or more than six months, or both such fine and imprisonment, in the discretion of the court, and shall be removed from office. As amended, Stats. 1881, 41.

Cited, in opinion of Hawley, J., dissenting, State ex rel. Galusha v. Davis, 20 Nev. 231 (19 P. 894).

1802. Per diem of inspector and clerk of election-Mileage of messenger. SEC. 36. There shall be allowed out of the county treasury of such county to each inspector and each clerk of election five dollars per diem, but in no case to exceed twenty dollars for all services required by law to be performed by each of them at any one election. And to the person carrying the pollbooks from the place of election to the clerk's office, and to the clerk of the board of county commissioners for attending at another county to canvass votes, the sum of fifteen cents per mile for going and fifteen cents per mile for returning, to be paid out of the county treasury. As amended, Stats. 1889, 35; 1899, 99.

1803. Any elector may contest election-Causes of contest.

SEC. 37. Any elector, of the proper county, may contest the right of any person declared duly elected to an office exercised in and for such county; and, also, any elector of a township may contest the right of any person declared duly elected to any office in and for such township, for any of the following causes: First-For malconduct on the part of the board of inspectors, or any member thereof. Second-When the person whose right to the office is contested was not at the time of election eligible to such office. Offering, before election, to make a bond month a portion of his salary, does not disconditioned that, if elected, the candidate qualify from holding office. Egan v. Jones, would return to the county treasury each 21 Nev. 433, 434 (32 P. 929).

1804. Contest-Effect of misconduct of inspectors.

SEC. 38. When any election, held for an office exercised in and for a county, is contested on account of any malconduct on the part of the board of inspectors of any precinct, or any member thereof, the election shall not be annulled and set aside upon any proof thereof, unless the rejection of the vote of such precinct shall change the result as to such office in the remaining vote of the county.

This section construed to mean: "A person officially declared elected shall not be disturbed by vain and fruitless contests, andunless a different result of the election can

be reached, his election shall not be contested." Lynip v. Buckner, 22 Nev. 435 (30 L. R. A. 354, 41 P. 762).

1805. Statement on contest-Time for filing-What to state.

SEC. 39. When any elector shall choose to contest the right of any person. declared duly elected to such office, he shall, within forty days thereafter, file with the clerk of the district court a written statement, setting forth, specifically: First-The name of the party contesting such election, and that he is a qualified elector of the district, county, or precinct (as the case may be), in which such election was held. Second-The name of the person whose right to the office is contested. Third-The office. Fourth-The particular cause or causes of such contest. Said statement shall be veri

fied by the affidavit of the contesting party that the matters and things therein contained are true, to the best of his knowledge and belief.

See secs. 1894, 1895.

1806. Allegations and proceedings when contest for illegal votes―Jurisdiction of district courts.

SEC. 40. When the reception of illegal votes is alleged as a cause of contest, it shall be sufficient to state generally that illegal votes were given to the person whose election is contested in the specified precinct or precincts, which, if taken from him, will reduce the number of his legal votes below the number of legal votes given to some other person for the same office; but no testimony shall be received of illegal votes unless the party contesting such election shall deliver to the opposite party, at least three days before such trial, a written list of the number of illegal votes, and by whom given, which he intends to prove on such trial; and no testimony shall be received of any illegal votes except such as are specified in such lists; provided, that in all cases of contested elections, the district court of the respective districts shall have original jurisdiction to try and determine all such cases, and may, by mandamus or otherwise, obtain all documentary evidence required by either of the parties litigant.

Complaint in an election contest held sufficient. Greeley v. Holland, 14 Nev. 320, 323. Held insufficient. Egan v. Jones, 21 Nev. 433 (32 P. 929).

The time of notice required to be given as to illegal votes relied upon, must be computed by including the first and excluding the last day, and the notice must be given three days before the trial commences, without regard to whether any evidence is introduced on the first day of the trial. Stinson v. Sweeney, 17 Nev. 310 (30 P. 997).

law, it was unnecessary to provide for any other mode of procedure. Lynip v. Buckner, 22 Nev. 435 (30 L. R. A. 354, 41 P. 762).

In an election contest, the ballots themselves furnish the primary and controlling evidence as to which party to the contest received the greater number of votes. Schneider v. Bray, 22 Nev. 272, 278 (39 P. 326).

The rule that, as between the ballots and a canvass of them, the ballots control, has no application where the ballots have been tampered with after they have been depos ited in the box. Dennis v. Caughlin, 23 Nev. 188, 193 (44 P. 818).

The writ of prohibition does not lie to restrain a district judge from canvassing the returns in an election contest, since the party aggrieved by any erroneous action of the court has an adequate remedy by appeal. Turner v. Langan, 29 Nev. 281, 283 (88 P. 1088).

This section confers original jurisdiction upon district courts in this class of cases and section 44 provides that a certified copy of the judgment of the supreme court may be used as proof in certain cases. Nothing is said, in direct terms, upon the subject of new trials and appeals. The civil practice act provides a mode for review upon motion for new trial or appeal in all cases tried by district courts, and in enacting the election 1807. Statement not rejected or proceedings dismissed for want of form. SEC. 41. No statement of the cause of contest shall be rejected, nor the proceedings thereon dismissed, by any court before which such contest may be brought for trial, for want of form, if the particular cause or causes of contest shall be alleged with such certainty as will sufficiently advise the defendant of the particular proceedings or cause for which such election is contested.

1808. Time and place for hearing contest, how fixed.

SEC. 42. Upon such statement being filed, it shall be the duty of the clerk of the district court to inform the judge thereof, who shall fix the time and place to hear and determine such contested election; and the clerk shall give notice thereof, not less than ten nor more than twenty days from the date of such notice to the parties contesting, which said notice shall be served by the sheriff of the county upon the respective parties, as in other cases.

1809. Witnesses, subpenas for.

SEC. 43. The said clerk shall issue subpenas and subpenas duces tecum, as in civil actions at law, for witnesses in such contested election, at the

request of either party, which shall be served by the sheriff as other subpenas; and the district court shall have full power to issue attachments to compel the attendance of witnesses who shall fail to attend, who shall have been duly subpenaed.

1810. Certificate of election-To whom shall issue.

SEC. 44. Upon the certified copy of a judgment of the district court, or a certified copy of the judgment of the supreme court, as the case may be, the clerk of the board of county commissioners shall issue a certificate to the person declared to be entitled to such certificate of election.

See Lynip v. Buckner, under section 40 of this act.

1811. Fees of clerk, sheriff and witnesses.

SEC. 45. The clerk, sheriff, and witnesses shall receive, respectively, the same fees from the party against whom the judgment is given as are allowed for similar services in the district court.

In special proceedings costs will not be allowed except by legislative action. Nor will fees be given to officers by the courts unless specially provided for by statute. Garrard v. Gallagher, 11 Nev. 382, 386.

1812. Office, when becomes vacant.

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. Idem.

SEC. 46. Whenever an election shall be annulled and set aside by the judgment of the district court, and no appeal has been taken therefrom within thirty days, such certificate, if any has been issued, shall thereby be rendered void, and the office become vacant.

A judgment of the district court in an election contest declaring the election of a candidate whom the official returns showed had been defeated is not an annulment of

an election within the meaning of this section. Lynip v. Buckner, 22 Nev. 426, 434 (30 L. R. A. 354, 41 P. 762).

1813. Contest of election of district judge.

SEC. 47. In case of any contest in regard to any election to fill the office of district judge, such contest shall be tried in like manner before the district court of the district nearest adjoining thereto.

1814. District attorney may bring action for unlawfully holding office. SEC. 48. Any such action may be brought by the district attorney, in the name of the State of Nevada, upon his own information, or upon the complaint of any private party, against any person who unlawfully holds any public office within the state; and it shall be the duty of the district attorney to bring such action whenever he has reason to believe that any such office is unlawfully held or exercised by any person, or when he is directed so to do by the governor.

1815. When defendant arrested and held.

SEC. 49. Whenever such action is brought, the district attorney, in addition to the statement and cause of action, may also set forth in the complaint the name of the person rightly entitled to the office or franchise, with a statement of his right thereto; and in such case, upon proof by affidavit or otherwise, that the defendant has received fees or emoluments belonging to the office or franchise, by means of his usurpation thereof, an order may be granted by a judge of the supreme court, or a district judge, for the arrest of such defendant and holding him to bail; and thereupon he may be arrested and held to bail in the same manner and with the same effect, and subject to the same rights and liabilities as in other civil actions where the defendant is subject to arrest.

1816. Damages recoverable.

SEC. 50. If the judgment be rendered upon the right of the person so alleged to be entitled, in favor of such person, he may recover, by action, the damages which he shall have sustained by reason of the usurpation of the office or franchise by the defendant.

1817. One action brought against several persons.

SEC. 51. When several persons claim to be entitled or elected to the same office, one action may be brought by or against all such persons, in order to try their respective rights to such office.

1818. Contest for members of the legislature-Conduct of.

SEC. 52. In case of contest for senator or assemblyman in any county in this state, the party contesting shall file a statement in the office of the county clerk of the county in which such senator or assemblyman may be a resident, a concise statement of the grounds upon which he intends to rely, which statement shall be verified by affidavit; and it shall be the duty of the clerk to issue a commission, directed to a justice of the peace of such county, to meet at such time and place as shall be specified in such commission, not less than twenty nor more than thirty days from the filing of such papers, for the purpose of taking the deposition of such witnesses as the parties to such contest may wish to examine, and notice shall be served upon the person whose right to such office is contested, by the sheriff of the county, the same as provided for by law in like cases. As amended, Stats. 1899, 114.

These proceedings are special and the courts have no jurisdiction. Garrard v. Gallagher, 11 Nev. 382, 385.

When 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.

The fact that the contestant of an elec tion for the office of legislator had a remedy by this section, does not preclude him from prosecuting his remedy by recount before the board of county commissioners. Wright v. Washoe Co., 27 Nev. 34, 40 (71 P. 145).

1819. Justice of the peace empowered to issue subpena-Written testi

mony.

SEC. 53. Said justice of the peace shall have power at any time to issue subpenas for witnesses at the request of either party, to be served by the sheriff, as other subpenas; and said justice shall have the same power to issue attachments and assess fines against witnesses as is given to justices of the peace in other trials instituted before him; and all testimony taken before him during such proceeding shall be in writing, and shall be certified to and forwarded by mail or express, or delivered to the clerk of the county. As amended, Stats. 1899, 115.

1820. County clerk to seal and transmit all papers to secretary of state. SEC. 54. It shall be the duty of the said clerk to seal up such depositions, together with the original statement of the grounds of such contest, and a copy of the notice served upon the party whose right is contested, and the commission issued to the justice of the peace, and transmit the same by mail to the secretary of state, indorsing thereon the names of the contesting parties and the branch of the legislature before which such contest is to be tried. As amended, Stats. 1899, 115.

[Sec. 55 repealed, Stats. 1899, 115.] ·

1821. Duty of secretary of state.

SEC. 56. It shall be the duty of the secretary of state to deliver the same, unopened, to the presiding officer of the house in which such contest is to be tried, on or before the second day after the organization of the legislature next after taking such depositions; and such presiding officer shall immediately give notice to said house that said papers are in his possession.

1822. When either party may take depositions.

SEC. 57. At any time after notice of any contest shall be given, and before the trial of such contested election before the proper branch of the legislature, it may be lawful for either party to such contest to take depositions, to be read on the trial thereof in like manner and under the same rules as are allowed and required in cases of depositions to be read on any trial pending in the district court; and such depositions, when thus taken, shall be sealed up by the officer taking the same and directed to the secretary of state, who shall keep the same, unopened, and deliver them to the presiding officer of the house in which such contest is to be tried, to be disposed of by such officer as the depositions specified in the preceding section.

1823. Contesting election of state officers-Who may contest, and how.

SEC. 58. Any qualified elector of the state may contest the election of any person declared duly elected to any state office within this state by filing a specification of the grounds of such contest with the clerk of the supreme court, which specification shall be verified by oath or affirmation, and it is hereby made the duty of the attorney-general to prosecute such action in the name of the people of the state, before the supreme court, who shall have original jurisdiction in such cases; the justices, or either of them, shall have power to issue such process as may be necessary to the complete hearing and final determination of such action.

Sections 59 to 82, inclusive, of this act were repealed by implication by Stats. 1909, 293, after sections 59 to 62, inclusive, had been held unconstitutional as not germain to the title, in Bell v. District Court, 28 Nev. 280, 163 A. S. 854, 1 L. R. A. (N. S.) 843, 81 P. 875. See sec. 275, ante.

This last-named act was afterward incorporated in the criminal practice and crimes and punishments acts, and will be found in sections 6878-6907.

The object of this section is to protect the public from corrupt and neglectful officials by removing them from office. Bell v. Dis

trict Court, 28 Nev. 298, 163 A. S. 854, 1 L. K. A. (N. S.) 843, 81 P. 875.

1824. Fraudulent action of officers of election-Felony.

SEC. 83. Every person charged with the performance of any duty under the provisions of any law of this state relating to elections, who wilfully neglects or refuses to perform it, or who, in his official capacity, knowingly and fraudulently acts in contravention or violation of any of the provisions of such laws, shall be deemed guilty of felony, and punishable by fine not exceeding one thousand dollars, or by imprisonment in the state prison not exceeding five years, or by both such fine and imprisonment.

1825. Refusing to take oath or to answer questions-Misdemeanor.

SEC. 84. Every person who, after being required by the board of judges at any election, refuses to be sworn, or who, after being sworn, refuses to answer any pertinent question propounded by such board touching his right or the right of any other person to vote, is guilty of a misdemeanor, punishable by a fine not exceeding five hundred dollars, or imprisonment in the county jail not exceeding three months, or by both such fine and imprisonment. See secs. 1726, 1731 and 1780 providing for oath and identification of voter. 1826. Fraudulent voting and other acts, felony.

SEC. 85. Every person not entitled to vote who fraudulently votes, and every person who votes more than once at any election, or knowingly hands in two or more tickets folded together, or changes any ballot after the same has been deposited in the ballot-box, or adds or attempts to add any ballot to those legally polled at any election, either by fraudulently introducing the same into the ballot-box before or after the ballots therein have been counted, or adds to or mixes with, or attempts to add to or mix with, the ballots lawfully provided, other ballots while the same are being counted.