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«OFFICIAL OPINIONS OF THE ATTORNEY GENERAL - 1918 138. State Assayer and InspectorFees. The State Assayer and Inspector cannot charge less than 25 ...»

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Section 2 of same Act is applicable to those residing in the city of Washington, while in the service of the United States. It states: “No person shall be deemed to have gained or lost a residence by reason of his presence or absence while employed in the naval, military or civil service of the United States.” It may be argued that by the use of the words “appearing before,” in the said section 12, the Legislature intended that every elector of the State, was required to appear personally in order to register. Such may be the strict technical meaning of the word “appear,” but, as is well known, every summons issued by any court requires the defendant to appear within the time specified, and in a vast majority of the cases the appearance has never been questioned. One of the meanings of “appear” is “to present one’s self.” If an elector of Nevada, living in a foreign State, should deliver to the registrar by mail or otherwise the registration card with the blanks properly filled and as required by said section 12, “making satisfactory answers to all questions propounded by the County Clerk touching the items of information called for by such registration card,” he certainly presents himself to the registrar as an applicant for election and gives such registrar the information necessary, in his judgment, as to whether or not the applicant is an elector of the State of Nevada and entitled to registration. Having enacted the provisions of section 2, above quoted, it would be a manifest distortion of the law to assume from the language of section 12 that the Legislature intended that every such elector living outside the State of Nevada is required to present himself in person before the registrar for the purpose of registration.

It is the opinion of this office that it is your duty to mail registry blanks to any person living outside the State applying for them, and, upon receipt of the same with blanks properly filled and the cards signed and verified by the applicant for registration, it is your duty to treat the applicant as properly registered if you are satisfied with the information therein contained.

Yours very truly, EDW. T. PATRICK, Deputy Attorney-General.

209. Elections—Ballots.

A candidate’s name cannot appear more than once on the ballot, even though he is named by two different parties.

–  –  –

F.E. NICHOLS, M.D., Fallon, Nevada.

DEAR SIR: In answer to your favor of the 27th instant, let me say that a candidate’s name cannot appear more than once on the ballot, even though he is nominated by two different parties.

His name must appear once only and after his name is a designation of the party or parties by which he is nominated.

Trusting this will give you the information desired, I am Yours very truly, GEO. B. THATCHER, Attorney-General.

BY EDW. T. PATRICK, Deputy.

210. Nevada Industrial Commission—Candidates.

An employee of the Nevada Industrial Commission may legally be a candidate for and may be elected to any public office.

–  –  –

HON. W.P. HARRINGTON, Carson City, Nevada.

DEAR SIR: We are in receipt of your oral request for an opinion as to whether or not an employee of the Nevada Industrial Commission may legally be a candidate for public office. The

Nevada Industrial Insurance Act (Stats. 1915, p. 283) provides that:

A member of the Commission or an employee of the Commission shall not serve on any committee of any political party. A political party is defined by statute (Stats. 1917, 276) to be—an organization of voters qualified to participate in the primary election.

The candidates of the respective political parties elect a county central committee and a state central committee and each of these committees has power to select an executive committee (Stats. 1917, p. 285), and, therefore, the only committees on which an employee of the Commission is prohibited from serving.

As the law expressly prohibits employees of the commission from serving on committees of political parties, it is presumed that no other prohibitions were intended. Had it been the intention of the Legislature to prohibit an employee of the Commission from becoming a candidate for public office, language at least indicating such intention would have been used.

It is our opinion that an employee of the Nevada Industrial Insurance Commission may legally be a candidate for and may be elected to any public office.

Yours very truly, GEO. B. THATCHER, Attorney-General.

BY WM. McKNIGHT, Deputy.

211. District Judge—Federal Position.

A District Judge cannot accept an appointment as a United States Commissioner.

CARSON CITY, July 31, 1918.

HON. MARK R. AVERILL, Tonopah, Nevada.

DEAR JUDGE: I am in receipt of your of June 22, with reference to your eligibility for appointment as United States Commissioner for Tonopah during the continuance of the war. Mr.

Woodburn has, I think, written you as to what my idea is, but I presume you want a more formal opinion from this office.

Section 9 of article 4 of the Constitution provides:

No person holding any lucrative office under the Government of the United States or any other power shall be eligible to any civil office of profit under this State; provided, that postmasters whose compensation does not exceed five hundred dollars per annum or commissioners of deeds shall not be deemed as holding a lucrative office.





The office of United States Commissioners carries with its fees under the law and the waiver of relinquishment of these fees by the individual who might be appointed would not, in my opinion, change the fact that the office is a lucrative office.

I am of the opinion that you may not, as District Judge, hold the office of United States Commissioner. I respectfully call your attention to the decisions under Rev. Laws, 267 (Const.

art. 4, sec. 9).

You will observe that in State v. McMillan, 25 Nev. 132, the Supreme Court held that a State Senator, by accepting appointment as a paymaster in the army, became incapable of legally holding the office of State Senator and such acceptance operated as a resignation of the state office and created a vacancy therein.

Some time ago Judge McCarran was requested to accept a dollar a year position under the Government of the United States, but he declined, so I am informed, on account of the provisions of the Constitution to which I have referred.

I regret very much that you may not accept this position, for it would be a splendid thing for a man of your capabilities and experience to hold the office.

Yours very truly, GEO. B. THATCHER, Attorney-General.

212. Water—Watercourses.

Under section 65 of the Water Law (Stats. 1913, pp. 192-212) the provisions fixing the time of five years for the completion of construction work and ten years for the application of a beneficial use are subject to the latter provision of the section, that the State Engineer may for good cause extend the periods.

CARSON CITY, August 1, 1918.

SEYMOUR CASE, ESQ., State Engineer, Carson City, Nevada.

DEAR SIR: Replying to your request for an opinion upon the construction to be given to

section 65 of the water law, Stats. 1913, pp. 192-212, I beg to advise as follows:

Section 65 provides as follows:

In his endorsement of approval upon any application the State Engineer shall set a time prior to which actual construction work shall begin, which shall not be more than one year from the date of such approval; and that work shall be prosecuted diligently and uninterruptedly to completion unless temporarily interrupted by the elements; a time prior to which the construction of said works must be completed, which shall be within five years of the date of such approval, and a time prior to which the complete application of water to a beneficial use must be made, which time shall not exceed ten years from the date of the said approval. He may limit the applicant to a less amount of water than that applied for, to a less period of time for the completion of work, and a less period of time for the perfecting of the application than named in the application. The State Engineer shall have authority, for good cause shown, to extend the time within which construction work shall begin, within which construction work shall be completed, or water applied to a beneficial use, under any permit therefor issued by said State Engineer; provided, however, that application for such extension must in all cases be made prior to the time set in the application limiting the period which it is desired to extend.

You will observe that in the first part of the section of the State Engineer in his endorsement of approval is required to state a time prior to which actual construction work shall begin, and a time prior to which the construction work must be completed, which shall not be more than five years from the date of such approval; and a time prior to which the complete application of the water to a beneficial use must be made, which shall not exceed ten years from the date of the approval. Subsequent provisions of the section, however, provide that the State Engineer shall have authority, for good cause shown, to extend the time in which the construction work shall begin—in which construction work shall be completed—and in which water shall be applied to a beneficial use. These are subject only to the proviso that applications shall in all cases be made before the time limit shall have expired. I am of the opinion that the provisions fixing the time of five years for the completion of construction work and ten years for the application to a beneficial use are subject to the latter provision of the section, providing that the State Engineer may for good cause extend the periods. To otherwise hold would be to give too strict a construction to the statute and would be giving a construction which would favor forfeitures instead of discouraging them.

In addition to that which I have already stated, It is a well-settled rule of statutory construction that, where there are conflicting provisions in a statute or in a section of a statute, the last expression of the Legislature controls and that the last in point of position controls in cases of conflict in the statute or in a section of a statute. (36 Cyc. 1130; Ex Parte Hewlett, 22 Nev. 333, 40 Pac. 96; United States v. Jackson, 143 Fed. 783.) Yours very truly, GEO. B. THATCHER, Attorney-General.

213. Elections—Ballots—Nonpartisan Ballot.

No elector can be denied to vote a nonpartisan ballot for judicial and school offices.

If an elector who has registered his political party and in that political party there is no contest, and, therefore, no ballot printed, he is not thereby deprived of the right to vote a nonpartisan ballot.

CARSON CITY, August 2, 1918.

MR. AUSTIN JACKSON, Reno, Nevada.

DEAR SIR: I am in receipt of your request for an opinion upon the following questions:

(a) In the event that there is no contest in any particular party (referring particularly to the Socialist Party) is it necessary to print ballots for the Socialist Party Containing only the name of the nonpartisan nominees?

(b) In the event that no such ballots are printed, may a person registered as a member of a political party vote a nonpartisan ballot?

Subdivision h of section 12 of the Primary Act of 1917 (Stats. 1917, p. 282) provides:

(h) Where there is no party contest for any office the name of the candidate for party nomination shall be omitted from the ballot and shall be certified by the proper officer as a nominee of his party for such office.

The manifest intention of this provision was to save the expense of preparing, printing and distributing ballots and counting and returning the same where there is no primary contest, and I am of opinion that where there is no contest of the party at all no ballots for that particular party shall be printed and the candidate of such party stands nominated immediately upon the closing of the last day for filing nomination papers.

The last paragraph of section 16 of the Primary Act above referred to provides:

No elector shall be entitled to vote a party ballot at the primary election unless he has theretofore designated to the registry agents his politics or political party to which he belongs and has caused the same to be entered upon the register by such registry agents; provided, however, that no elector shall be denied the right to a vote a nonpartisan ballot for judicial and school offices at such primaries.

The provision of the foregoing is clear and conclusive. No elector shall be denied the right to vote a nonpartisan ballot for judicial and school offices. If an elector who has registered his political party, and in that political party there is no contest and, therefore, no ballot printed, he is not thereby deprived of the right to vote a nonpartisan ballot. On the contrary, this right is specifically reserved and, regardless of the registrant declaring his political party, he may demand and vote a nonpartisan primary ballot at the primary election.

Yours very truly, GEO. B. THATCHER, Attorney-General.

214. Elections—Candidates—Secretary of State.

It is not necessary for the Secretary of State to certify to the various County Clerks the names of the applicants for the nomination in a case where only two candidates file nomination papers for the same nonpartisan office. Such persons stand as the nonpartisan nominees at the general election and at the proper time their names should be certified to the various County Clerks to be placed upon the ballot for such general elections.

CARSON CITY, August 3, 1918.

HON. GEORGE BRODIGAN, Secretary of State, Carson City, Nevada.



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