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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 6287, Rev. Laws, do not apply to an officer removed from office under the provisions of sections 2851-2854. The former section applies to officers removed after trial on indictment or accusation by grand jury or information by District Attorney. Section 6287 is a penal statute and is to be strictly construed. A removal under the last-named sections does not disqualify an officer from being a candidate for election nor will it disqualify him from holding office if elected.

–  –  –

JAMES W. WOODARD, SR., Las Vegas, Nevada.

Patrick’s telegraphic opinion to you of October 22 in response to your telegram of October 21 just called to my attention. I cannot agree with Patrick’s Opinion. I am of the opinion after a careful examination of the complaint that Gay was removed from office for nonfeasance in office. Rev. Laws, 6287, disqualifies a public officer from afterward holding public office when there is a conviction of a felony or malfeasance in office. The statute under which Gay was removed was one providing for summary removal. There was no conviction of Gay of any felony or malfeasance in office. Such a conviction could only be had after an indictment or accusation by grand jury or by an information by District Attorney and a jury trial. Section 6287 in my opinion is a penal statute and is to be strictly construed and no person can be construed as coming within its provisions unless it is clear beyond a reasonable doubt that the facts bring him within it. I call your attention to Ex Parte Davis, 33 Nev. 309. I am of the opinion that Gay’s removal, as shown in the transcript to the Supreme Court, does not prevent him from either being a candidate for election to the office of Sheriff nor will it disqualify him from holding such office if he be elected. In justice to Mr. Gay, I am wiring him a copy of this opinion.

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

237. Officers—Term of Office.

Any person elected to office at the general election does not take possession of such office until the first Monday of January succeeding the general election.

–  –  –

MR. C.E. KIBLINGER, County Commissioner, Gold Hill, Nevada.

DEAR SIR: I am in receipt of your favor of the 8th instant, asking information in regard to the status of your Sheriff.

It appears that the Sheriff of the county died and Mr. J.J. Carew was appointed Sheriff “until his successor is elected and qualifies.” Mr. Carew ran for this office at the last election and was defeated by Mr. T.J. Hurley. The question is now who takes the office for the balance of the term of Mr. O’Connor.

Rev. Laws, 2781, provides that the various county officers shall be chosen by the electors of the respective counties at the general election of the year 1866 and at the general election every two years thereafter “and shall enter upon the duties of their respective offices on the first Monday of January subsequent to their election.” If any one filed for the unexpired term of Mr.

O’Connor and was elected, he would be entitled to fill the office until the first Monday of January next; if no one was elected for such unexpired term, then there is a vacancy in the office up to the first Monday of January next and the same may be filled by the Board of County Commissioners.

Mr. Hurley, who was elected at the last general election to such office, does not take office until the first Monday of January next.

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

238. Counties—Employees—Stenographers—Compensation.

There is no law which prevents a stenographer in the office of the District Attorney from reporting proceedings in the Justice’s Court. Upon performance of such work, the stenographer is entitled to receive the compensation provided by law therefor, in addition to her regular salary.

CARSON CITY, November 15, 1918.

MISS M.U. SHIELDS, Tonopah, Nevada.

DEAR MISS SHIELDS: We are in receipt of your letter of the 12th instant, requesting an

opinion upon the following question:

Is it not allowable for an employee drawing salary by the month from the county, to receive compensation also as per statute for work done in Justice’s Court? For instance, is there anything in the law to prevent an employee on salary at $100 per month in the District Attorney’s office, from receiving the per diem and per folio rate for reporting and writing up the preliminary hearing and inquisition in the Justice’s Court during that month?

There is no law which prevents a stenographer in the office of the District Attorney reporting proceedings in the Justice’s Court. In the absence of such a provision you are legally entitled to perform such work and to receive the compensation provided by the law therefor in addition to your regular salary.

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

BY WM. McKNIGHT, Deputy.

239. Elections—County Commissioners—Canvass—Returns.

In making the canvass of election returns, the Board of County Commissioners is nothing more or less than a board of canvassers, and they have no right to go back of the certificate of the judges of election or check the tally marks. Such board can only add up the totals from each precinct, and, in adding such totals, they can use only those expressed in the certificate of the inspectors and clerks.





RENO, NEVADA, November 15, 1918.

HON. S.W. BELFORD, Attorney at Law, Reno, Nevada.

DEAR SIR: I am in receipt of your request for an opinion on the following state of facts:

The County Commissioners of Washoe County, in making a canvass of the votes of the recent election for the office of Assemblyman, have determined that L.K. Gregory received in this county a majority of four votes over Joseph F.

McDonald. The determination of the board was reached, as I am advised, by checking the tally marks in aa certain precinct in the city of Reno which showed an excess of five votes over the total as certified to by the inspectors and clerks of election. In other words, the Board of County Commissioners in making an

Abstract

of the votes followed the tally marks instead of the written totals, and went beyond the totals, as appearing in the certificate, to ascertain the actual number of votes from the tally marks.

This question is governed by sections 16 and 25 of the General Election Law of 1917,

Statutes of 1917, pp. 363, 366. Section 16 provides as follows:

The ballots and poll-lists agreeing, or being made to agree, the board shall then proceed to count and ascertain the number of votes cast, and for whom cast, and when completed, the clerks shall set down in their poll-books, the name of every person voted for, written at full length, the office for which such person received such votes, and the number he did receive, the number being expressed in writing at full length, and also in figures; such entry to be made, as nearly as the

circumstances will admit, in the following form, to wit:

At an election held at the house of A.B., in the town or precinct) of

Nevada, on the.......... day of

persons received the number of votes annexed to their respective names for the

following-described officers, to with:

A.B. had.......... votes for Member of Congress.

C.D. had.......... votes for State Treasurer.

E.F. had.......... votes for State Controller.

G.H. had.......... votes for State Superintendent of Public Instruction.

–  –  –

240. Corporation—Secretary of State—Appointment of Agent—Foreign Corporations.

The proper fee for the Secretary of State to charge for filing a certificate of appointment of agent of a foreign corporation is five ($5) dollars.

–  –  –

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

DEAR SIR: We are in receipt of your request for an opinion as to what is— the proper fee to charge for filing appointment of agent, under the provisions of the Act of 1889.

It is unnecessary at this time to discuss the provisions of the Act mentioned, because your fees are regulated by section 102 of the General Corporation Law (Stats. 1913, p. 58), wherein it

is provided that:

On filing any certificate or articles or other paper relative to corporations in the office of the Secretary of State, for the use of the State: * * * For all certificates not hereby provided for, five dollars; provided, that no fees shall be required to be paid by any religious or charitable society or educational association having no capital stock; and provided further, that foreign corporations shall pay the same fees to the Secretary of State as are required to be paid by corporations organized under the laws of this State.

You are, therefore, advised that the proper fee to charge for filing a certificate of appointment of process agent for a foreign corporation is $5.

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

BY WM. McKNIGHT, Deputy.

241. Elections—County Clerks—Fees.

County Clerks are entitled to charge and receive for their own use the fee of 10 cents per name provided for furnishing certified copies of the register for use at the primary election named in section 15 (Stats. 1917, p. 283).

CARSON CITY, November 21, 1918.

HON. L.E. GLASS, County Clerk, Nye County, Tonopah, Nevada.

DEAR SIR: We are in receipt of your letter of recent date, wherein you request an opinion as to whether or not you are entitled to any fee in addition to your regular salary for preparing certified copies of the register used at the primary election.

By section 8 of the general registration law (Stats. 1917, p. 426) it is provided that:

The County Clerk of each county of the State of Nevada is hereby declared to be an ex officio county registrar of such county.

The primary election law makes provision for the furnishing of certified copies of the register showing the names of all persons entitled to vote at such primary. Section 15 of said Act (Stats.

1917, p. 283) reads in part as follows:

Said register shall be made by taking the names of all voters on the register on the fifteenth day preceding the primary election. Said registry a gent shall be paid ten cents per name for certified copies of the register for use at the primary election.

From a reading of the entire Act, it is apparent that the registry agent named in section 15 is the ex officio county registrar provided for in the registration law, because such county registrar is the only person having control of and possessing the original list of names from which having control of and possessing the original list of names from which certified copies could be made.

As the County Clerk is ex officio county registrar and as the statutes distinctly provide for the payment of a fee for the furnishing of certified copies, it is clear that you are entitled to such fee unless there be something in the Act fixing your salary as County Clerk that prevents it.

The compensation of the County Clerk of Nye County is fixed by the Act of 1915 (Stats.

1915, p. 429), section 1 of which reads as follows:

The County Clerk shall receive a salary of three thousand dollars per annum for all his services in said office, and shall be allowed a deputy, to be named by him, at a compensation of eighteen hundred dollars per annum, and shall collect in advance, and monthly turn over to the County Treasurer of the county, fees and compensation received by him in said office.

This statute limits the County Clerk, for all services as such Clerk, to a flat salary of three thousand dollars per annum. Nothing whatever is said with reference to any ex officio services which might later be performed pursuant to any other statute, and no language is used which could, under any stretch of the imagination, be said to include any ex officio office attached to that of County Clerk. (Opinions of Attorney-General, 1918, 227; Bradley v. Esmeralda County, 32 Nev. 159.) We are, therefore, of the opinion that you are entitled to charge for and to receive the fee of 10 cents per name for furnishing certified copies of the register for use at the primary election.

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

BY WM. McKNIGHT, Deputy.

242. Elections—Ballots—Marking Of.

Stats. 1917, p. 372, provides the method in which ballots shall be marked by the elector, and ballots upon which a cross was made with a lead pencil or pen or by marking with the wrong end of the stamp should be rejected.

CARSON CITY, November 23, 1918.

MRS. BETSY O’REILLY GAMBLE, Las Vegas, Nevada.

DEAR MRS. GAMBLE: Mr. Arthur M. Allen, Special Agent of the Department of Justice, has handed us your letter of the 17th instant, wherein you ask whether an election ballot marked with ink should be counted. Replying thereto, will say that the law (Stats. 1917, p. 372) specifically provides that the voter— shall prepare his ballot by stamping a cross or X in the square, and in no other place, after the name of the person for whom he intends to vote for each office. In case of a constitutional amendment or other question submitted to the voters, the cross or X shall be placed in the square after the answer, which he desires to give.

Such stamping shall be done with a stamp in black ink, which stamp, ink, and ink-pad shall be furnished in sufficient number by the County Clerk for each election precinct in the county.

In State v. Baker and Josephs, 35 Nev. 300, the court held that ballots upon which the cross was made with lead pencil or pen or by marking with the wrong end of the stamp, as with pen or brush, should be rejected. Trusting that the above gives you the desired information, we are Yours very truly, GEO. B. THATCHER, Attorney-General.

BY WM. McKNIGHT, Deputy.

243. Prohibition—Initiative Prohibition Law—Time of Taking Effect.

The initiative prohibition measure will become a law and take effect at 12.01 a.m., December 17, 1918.

CARSON CITY, November 23, 1918.

HON. HARLEY A. HARMON, County Clerk, Las Vegas, Nevada.

DEAR MR. HARMON: We are in receipt of your recent letter, in which you request to be advised as to the exact time the initiative prohibition law takes effect.



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