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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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The provisions of section 25 of the registration law (Stats. 1917, p. 286) in regard to filling a vacancy applies only to vacancy occurring by the death or loss of reason of the nominee.

CARSON CITY, September 16, 1918.

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

DEAR SIR: I am in receipt of your favor of the 13th instant, asking the following questions

in regard to the primary law:

1. What is the duty of the County Clerk, when a candidate whose name has been regularly filed as a nominee of a political party for a certain office, asks that his name be withdrawn from the list of nominees, stating that he does so by direction of the Federal Administrator (Director-General) of the Railroads, the said nominee being a federal railroad employee?

2. If the name of a candidate for such office (assuming that there is a vacancy) is offered for filing by the county central committee, is the County Clerk required to accept such filing and certify such nominee as being the candidate of his party for such office?

1. As the candidate in question has regularly filed as a nominee of a political party for a certain office his nomination paper must have been similar to that set forth on page 278, Statutes of 1917, being part of section 5 of the primary election law. This declaration states “that if nominated as a candidate of said

nomination and not withdraw; * * * and that I will qualify for said office if elected thereto.” This language is exactly similar to that passed upon by the Supreme Court in the case of State v.

Hamilton, 33 Nev. 418, in which it was held:

One nominated at a primary election as a candidate of a political party for a public office cannot have his name omitted from the general election ballot, even though he has since the primary become incapacitated from making an active campaign.

The only kind of incapacity stated by the candidate in your letter as a reason for withdrawing is that he does so by direction of the Federal Administrator of Railroads because he is a federal railroad employee.

This reason can have no bearing upon the question whatsoever, as the United States Government has no right to interfere with state laws in a matter of this kind. The person in question is the nominee of his party for the office, and, in accordance with the decision in the case above mentioned, he cannot withdraw therefrom. It is therefore the duty of your Count Clerk to refuse his request for withdrawal.

2. In my opinion there can be no vacancy for such office except that occurring by death or loss of reason of the nominee. Whether the office in question is a partisan or nonpartisan office you do not state, but in either event if a vacancy occurs in such manner it can be filled by following the provisions of section 25 (Stats. 1917, p. 286) of the primary law.

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

230. Cities—Towns—Amendment to Charter—City of Elko—County Clerks.

The County Clerk is not required to place on the ballot for a general state election an amendment to the charter of the city of Elko.

The “general election” mentioned in section 29 of the charter of the city of Elko (Stats. 1917, p. 145), means the general city election.

CARSON CITY, September 19, 1918.

HON. M.J. KEITH, County Clerk, Elko, Nevada.

DEAR MISS KEITH: I am in receipt of your favor of the 17th instant, enclosing a copy of letter from the City Clerk of the city of Elko, also copy of resolution initiating charter amendment to be submitted to the voters of the city of Elko.

You state that you have been requested to place the question of the adoption of such charter amendment on the ballot for the general election to be held this year and request the advice of this office as to whether or not the law provides for such resolution to be placed on the ballot, and if so, if the resolution is in proper form.

The Act incorporating the city of Elko is found in Stats. 1917, p. 127. Section 79 of said Act (p. 171) permits amendment of the charter in the following language: “This charter may be amended in the following manner: Proposed amendments may be initiated either by the board or by the initiative petition as provided in section 29. Any proposal thereby submitted to the electors for approval shall take the regular course in this charter prescribed, and, if approved by the majority, this charter shall be considered so amended.” Upon referring to said section 29 of the charter (p. 145) I find that any proposed ordinance, resolution or amendment may be submitted to the board “and if such petition shall contain a request that the said ordinance, resolution or amendment be submitted to a vote of the people * * * the board shall * * * call a special election unless a general city election os to be held within ninety days thereafter.” Section 3 of said Act provides for an election to be held on the first Tuesday after the first Monday in May, 1919, and at each successive interval of two years thereafter. This is the “general city election” mentioned in section 29.

A general election of state or county officers is to be held on November 5, 1918, in this State, but such election can in no sense be considered a general city election, and I know of no provision whereby this attempted amendment of the charter of the city of Elko may be placed upon the ballot of such general state election.





The statute is specific that the Board of Supervisors must call a special election unless a general city election is to be held within ninety days, and there is no reason to doubt that such state election is not the general city election mentioned in its charter.

The statute requires this amendment to be submitted to the electors of Elko at a special election when a general city election is to be held within ninety days. Submitting this question at a general state election will not comply with the requirements of this statute, and, therefore, I am of opinion that it is not your duty to place such proposed amendment to the charter upon the ballot to be used at the next general state election.

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

231. Elections—Justices of the Peace—Nomination by Petition of Electors— Holdovers.

A Justice of the Peace may not be nominated by petition of electors.

Candidates for the office of Justice of the Peace should be nominated at the primary election.

If no such nomination is made at the primary election no one is contesting for the office, and the incumbent is entitled to hold office without further election for two years from the expiration of the term of office to which he was elected.

CARSON CITY, September 21, 1918.

MR. W.S. RAINE, Palisade, Nevada.

DEAR SIR: Your favor of the 18th instant, in reference to matter of Justice of the Peace of your township, received. Your explanation was what was needed and I now can advice you on the law.

As it appears to me at present the facts are as follows: Mr. Daniel Downing is the incumbent of this office and no one filed for the office in the primary election. You and another person are circulating petitions for the office with the expectation of having them filed by the County Clerk, and your names appear on the ballot to be used at the general election as aspirants for the office, and that the one receiving the highest vote at such election will be declared the candidate elected.

I am sorry to say that such is not the law.

The provision for nomination by petition of electors is found in section 31 of the Primary Act, Statutes of 1917, p. 287. This applies to any office not a judicial office. A Justice of the

Peace holds a judicial office. The last paragraph of said section 31 provides that:

No nomination for a judicial or school office shall be under the provisions of this section, but all such candidates shall be nominated at the primary election.

In vie of this provision it is apparent that your petition of electors would be invalid and your County Clerk should disregard the same.

There is a further matter to be considered in connection with this situation. Rev. Laws. 2782, provides for the election of Justices of the Peace and Constables, and this section states that such officers hold their office “until their successors are elected and qualified.” As there was no nomination for this office made at the primary election and there will be no one contesting for the office at the general election, it is my opinion that Mr. Downing is entitled to hold this office without further election for two years from the 1st of January, 1919, and, there being no vacancy in the office, the County Commissioners are powerless to fill the same by appointment.

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

232. Corporation—General Corporation Law.

The amendment to section 89 of the general corporation law, as bearing on Stats.

1917, p. 193, is effective and said amended section is now a portion of the general corporation law.

CARSON CITY, September 27, 1918.

MR. R.M. HARDY, Attorney-at-Law, Lovelock, Nevada.

DEAR SIR: I am in receipt of your favor of the 25th instant, asking opinion on chapter 106 of the Statutes of 1917 (p. 193), of an Act to amend an Act entitled “An Act providing a General Corporation Law.” You call my attention to the fact that sections 3, 6, 19 and 70 of the General Corporation Act are properly amended, and ask my opinion as to whether section 89 has been

properly amended by that portion of chapter 106, appearing on page 195. That portion says:

“1190. Section 89. A corporation may be dissolved as follows,” and then goes on to provide for such dissolution.

The only provision of our Constitution as to amendments is section 17 of article 4 thereof, which states, “No law shall be revised or amended by reference to its title only; but, in such case, the Act as revised or section as amended shall be reenacted and published at length.” It is the evident intention of the Legislature to amend section 89 of the corporation law by substituting therefor a new method of dissolving corporations. This intention is manifested by the figures “1190,” which evidently referred to the section of the Revised Laws to be amended by the words “Section 89,” which refers to the particular section of the General Corporation Law to be amended and by the fact that the new matte as introduced in said section by the amendment on page 195 is within the general scope of the old section 89.

Such intention being manifest, and the constitutional provision above mentioned having been fully complied with, it is the opinion of this office that the amendment of section 89, appearing on said page 195, is effective and that said amended section is now a portion of the General Corporation Law.

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

233. Elections—Justices of the Peace.

Nomination of candidates for the office of Justice of the Peace must be made at the primary election.

–  –  –

MR. HARRY G. PRAY, Attorney at Law, Room 4, Byington Building, Reno, Nevada.

DEAR SIR: I am in receipt of your of the 2d, requesting an opinion as to whether or not a man can be a candidate for the office of Justice of the Peace after the close of the primary and without being a candidate for nomination at the primary.

I am of the opinion that he may not. Nomination of candidates for all public offices is governed by chapter 155, Stats. 1917, p. 276. The Primary Act provides by section 4 that all judicial and school offices shall be nonpartisan and the names of nonpartisan officers shall appear alike on all ballots of every political party without party designation.

The last paragraph of section 31 of the same Act provides as follows: “No nomination for judicial or school office shall be under the provisions of this section, but all such candidates shall be nominated at the primary election.” I hope this fully answers your question.

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

234. Employer and Employee—Eight-Hour Law—Janitors.

The provisions of section 6778, Rev. Laws, applies to janitors employed by the counties of this State.

CARSON CITY, October 16, 1918.

HON. ROBT. F. COLE, Labor Commissioner, Carson City, Nevada.

DEAR SIR: I am in receipt of your favor of the 11th instant, directing my attention to Rev.

Laws, 6778, which provides:

On public works, all works or undertakings carried on or aided by the county, state, or municipal governments, eight hours shall constitute a day’s labor.

You state that from personal observation you know that the janitor work carried on by the county of Washoe at the courthouse is being conducted on a twelve-hour basis, and you ask a ruling as to whether or not the above-mentioned section is applicable to janitor service in the various counties of the State.

In response thereto, let me say that, in the opinion of this office, such action is a clear violation of Rev. Laws, 6778.

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

235. State Labor Commissioner—Appropriation.

The unused portion of the appropriation made by the Legislature of 1917, for the salary of the Labor Commissioner and support of the labor commission, may lawfully be used for the support of the Commission.

–  –  –

HON. ROBT. F. COLE, Labor Commissioner, Carson City, Nevada.

DEAR SIR: I am in receipt of your favor of the 20th instant, wherein it appears that the Legislature for 1917 made an appropriation— For salary of Labor Commissioner; support of Labor Commission, $5,00.

It further appears that the sum of $125 still remains in this fund representing the unpaid portion of the Commissioner’s salary during the year 1917 caused by a vacancy in the office.

You inquire whether this unpaid portion of the salary may be used in the support of the Commission.

According to the terms of the appropriation the $5,000 is liable both for salary and support, and it is, therefore, the opinion of this office that the $125 referred to may lawfully be used for the support of the Commission.

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

236. Officers—Disqualification of—Removal of—Malfeasance in Office—Crimes and Punishment.



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