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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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DEAR SIR: I am in receipt of your favor of the 2d instant, requesting opinion “as to whether in the case wherein two candidates file nomination papers for a nonpartisan office, to which only one person can be elected, the names of such candidates should be certified by your office to the various County Clerks.” The purpose of the primary election is to select candidates whose names will appear upon the general election ballot. Efforts have constantly been made to lessen the expense of this election as much as possible. Such is the provision that where there is no party contest for an office the name of the applicant for the nomination shall not be printed upon the primary ballot.

At present Hon. P.A. McCarran and Hon. Edward A. Ducker are the only ones who have filed as nonpartisan candidates for Justice of the Supreme Court, and Hon. John Edwards Bray and W.J. Hunting are the only persons who have filed as nonpartisan candidates for Superintendent of Public Instruction. Between these two sets of candidates there is no contest at present, and it would be an unnecessary expense to place their names upon the ballot at the primary election.

It is, therefore, the opinion of this office that it is not necessary for your office to certify to the various County Clerks the names of the applicants for 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 the general election.

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

BY EDW. T. PATRICK, Deputy.

215. Elections—Nomination by Petition of Electors—Judicial Officers—Justices of the Peace.

The prohibition in section 31, Stats. 1917, p. 288, against incorporating in the same petition more than one nomination for the same office does not prevent other candidates from being nominated for the same office by petition.

Any number of persons may be nominated for the same office by separate and distinct petitions.

Justices of the Peace are judicial officers.

Candidates for Justice of the Peace can be nominated only in the primary election and may not be nominated by petition.

CARSON CITY, August 5, 1918.

MR. W.H. FRYE, Attorney at Law, Lovelock, Nevada.

MY DEAR MR. FRYE: I am in receipt of yours of August 4th, requesting my opinion upon several questions.

As to your first question, the prohibition in Stats. 1917, p. 288, sec. 31, is against incorporating in the same petition more than one nomination for the same office. This does not prevent other candidates from being nominated for the same office by petition. Any number of persons can be nominated for the same office by separate and distinct petitions.

As to your second question, I am of the opinion that Justices of the Peace are judicial officers and within the meaning of subdivision 3 of section 1 of the Primary Act. (Stats. 1917, p. 276.) I am therefore of the opinion that candidates for Justice of the Peace can only be nominated in the primary election and may not be nominated petition.

Hoping this answers your questions and thanking you for your kindly expressions of goodwill, I am Yours very truly, GEO. B. THATCHER, Attorney-General.

–  –  –

HON. E.A. BLANCHARD, Justice of the Peace, Yerington, Nevada.

MY DEAR JUDGE: I am in receipt of yours of the 3d instant, with reference to the powers of a Justice Court to grant a new trial after a judgment has been entered. I agree with your opinion that sections 5321-5324 of the civil code on new trials are not applicable to proceedings in the Justice court.

New trials and appeals in the Justice Court are governed by chapter 83, section 3788, et. seq., of the Civil Practice Act. Appeals are provided for in these sections, but there is no provision either in this chapter or at any other place authorizing the Justice of the Peace to grant new trials of actions in his court. I call your attention also to the provisions of Rev. Laws, 5815, which

provides as follows:

Justice’s Courts, being courts of peculiar and limited jurisdiction, only those provisions of this Act which are in their nature applicable to the organization, powers and course of proceedings in Justice’s Courts or which have been made applicable by special provisions in this title, are applicable to Justice’s Courts and the proceedings therein.

You will observe that the Legislature, by the provisions of this section, specifically stated that the Justice Courts are of limited jurisdiction and that the provisions of the code do not apply unless in their very nature they are made applicable to the proceedings in the court or are specially referred to in this Act. New trials are not necessarily applicable to the powers and proceedings in the Justice Courts, and there is no provision specifically adopting as part of the procedure in the Justice Court the provisions of sections 5321-5324. The very fact that the District Court provides that upon appeals the cases shall be tried de novo shows that the new trials were to be granted in the District Court itself.

I quite agree with you in your decision that it was not within your power to reopen the case or grant a new trial.





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

217. Elections—Registration—Transfers.

All of the provisions of the old registration law relating to transfers after close of registration have been repealed by Stats. 1917, p. 425.

–  –  –

HON. G.A. BALLARD, District Attorney, Virginia City, Nevada.

DEAR MR. BALLARD: I am in receipt of your favor of the 5th instant, asking certain questions in regard to the registration law. In my opinion of all the provisions of the old law relating to transfers after close of registration have been repealed by the new Act (Stats. 1917, p.

425). You state:

I have read your opinion in regard to a person canceling his original registration, in cases where a transfer is not permitted, and registering in another county. You will see that the logic of this opinion would prevent him registering in another county after registration closes, and hence his cancelation of his registration after that time would only disfranchise him.

I do not think your conclusion logically follows, for the reason that our Constitution requires an elector to be a resident of the State six months and of the county thirty days. As no transfers are allowed except upon cancelation of the original registration and reregistration in another county, in order to be a qualified elector it is absolutely necessary that the person applying for registration should be a resident of the new county thirty days or he will be barred by the Constitution.

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

218. Criminal Practice—Appeal—Dismissal of Action.

A dismissal in an action by a District Judge on appeal for a conviction of a misdemeanor does not constitute a bar to subsequent prosecution for the same offense.

–  –  –

HON. G.J. KENNY, District Attorney, Fallon, Nevada.

DEAR MR. KENNY: I am in receipt of your favor of the 10th instant, asking construction of Rev. Laws, 7517. It appears that a man had been tried and convicted in the Justice Court for a misdemeanor and, upon appeal to the District Court, the court dismissed the action under the above-entitled section, on the ground that the facts stated in the complaint did not constitute a public offense.

You inquire whether this dismissal constitutes a bar to a subsequent prosecution for the same offense.

In Cyc. 261, it is said:

The accused is placed in jeopardy where he has pleaded and has been put on trial before a court of competent jurisdiction upon an indictment valid and sufficient in form and substance to sustain a conviction, and the jury has been sworn and impaneled and charged with the case.

It would follow, therefore, that if the indictment is not valid and sufficient in form and substance to sustain a conviction, the accused has not been put in jeopardy, and such is the case now before us.

If the facts stated in the complaint did not constitute a public offense, the court had no jurisdiction of the case and the conviction was a nullity. On page 265 of the same volume of

Cyc. it is said:

In like manner a plea of former jeopardy cannot be maintained where a former conviction of the defendant for the same offense was based upon an indictment which has been set aside as insufficient. (Supported by a number of cases cited in note 52.) We are, therefore, of the opinion that the dismissal in question does not constitute a bar to a subsequent prosecution for the same offense.

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

219. Elections—Registration.

Certain features of the registration law explained.

CARSON CITY, August 16, 1918.

HON. J.H. WHITE, District Attorney, Hawthorne, Nevada.

DEAR MR. WHITE: I am in receipt of your favor of the 14th instant, asking certain

questions in regard to the registration law, and would answer the same as follows:

1. Citizens registered by a deputy registrar, who is an alien, are legally registered and entitled to vote at the ensuing primary election.

2. A registration is legal, whether made by the County clerk, Deputy County Clerk or deputy registrar, if the registration card fails to give answer to each of the queries or statements set forth on the registration.

3. Authority from a deputy registrar is equal to that of the County Clerk, except that ordinarily he can register those onlywithin his precinct.

4. Under the circumstances stated in this question the deputy registrar may register a resident of another precinct.

5. The County Clerk has no authority to reject such registration, but may assign the person so registered to the proper precinct.

6. The County Clerk has authority to accept incomplete registrations as noted in this question, but he should have the defects corrected by the registration.

7. The requirements for production of certificate of naturalization is directory only; and, if it its production is not required by the registrar who registered the applicant, the County Clerk must accept such registration.

8. Answered in response to No. 7.

9. If the County Clerk or deputy registrar is satisfied that a Mexican Indian is a citizen of the United States, he should be registered.

10. The County Clerk has no authority to cancel a registry card upon any other ground or for any other cause than is set forth in section 21 of the registration law.

My opinion on the above inquiries is based upon the following quotation from 15 Cyc. pp.

307, 308:

Statutes prescribing the mode of proceeding of public officers are regarded as directory only unles sthere is something in the statute which shows a different intent. Hence as a general rule a statute prescribing the powers and duties of registration officers should not be so contrued as to make the right to voty by registered voters depend upon a strict observance by the registrars of all the minute directions of the statute in preparing the voting list, and thus render the constitutional right of suffrage liable to be defeated, without the fault of the elector, by the fraud, caprice, ignorance, or negligence of the registrars; for if an exact compliance by these officers with all statutory directions should be deemed essential to the right of an elector to vote, elections would oftain fail, and electors would be deprived without their fault of an opportunity to vote.

Trusting this will answer your inquiries, I am Yours very truly, EDW. T. PATRICK, Deputy Attorney-General.

220. Election—Registration—County Clerk.

When the registration cards in the office of the County Clerk show that an elector has registered in more than one precinct in his county, it is the duty of the County Clerk to cancel the registration from the precinct within which the elector does not reside and let his true registration card stand.

CARSON CITY, August 20, 1918.

HON. S.T. KELSO, County Clerk, Hawthorne, Nevada.

DEAR SIR: I am in receipt of your favor of the 10th instant, wherein you inquire:

What is the duty of the County Clerk when the registration cards in his office who that an elector has registered in more than one precinct in the county?

In answer, thereto, let me say that if you are satisfied such duplicate registration has happened, it is your duty to cancel the registration from the precinct in which the elector does not reside and let his true registration card stand.

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

221. Highways—Highway Law.

The Highway Act does not prohibit the Department of Highways from taking over the whole or any portion of the various routes in their present condition for maintenance or expending for that purpose moneys now in the State Highway Fund and in the various county-state highway funds.

Section 14 of said Act providing for bids on improvements exceeding the sum of $2,000 applies to construction only and not to maintenance.

CARSON CITY, August 22, 1918.

HON. C.C. COTTRELL, State Highway Engineer, Carson City, Nevada.

DEAR SIR: Your favor of the 12th instant, asking opinion upon certain points of the

highway law, received. In answer thereto, let me reply as follows:

1. There is nothing in the Highway Act (Stats. 1917, p. 309), or in any other law which would prevent your department from taking over either the whole or any portion of the various routes in their present condition for maintenance and expending for that purpose moneys now in the State Highway Fund and in the various county-state highway funds.

2. I am of opinion that section 14 of the Highway Act, providing for bids on improvements exceeding the sum of $2,000, applies to construction only and not to maintenance. It is impossible from the Act in question to determine what is the unit of improvement and your Commission will have to be governed in that regard by the experience of other States.



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