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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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1. Under section 4 of the Act, a druggist may sell “pure grain alcohol” upon a prescription of a physician; again he (the druggist) may sell “grain alcohol” upon the purchaser making a certain affidavit. Now, it seems, according to a federal law, a druggist cannot sell “grain alcohol” unless it is denatured with either poison or some neutralizing concomitant, to the end, in both cases, that it will be rendered “non-beverage.” With this the preamble, the question is: Where grain alcohol is sold, in the form and condition the federal law demands, does a druggist have to first insist upon the physician’s prescription or the affidavit, as section 4 sets forth?

The initiative prohibition law permits the sale, by druggists, of pure grain alcohol for medicinal purposes upon prescription, and for mechanical, pharmaceutical and scientific purposes upon affidavit. The only purpose of the prescription or the affidavit is to prevent, as far as possible, the use of alcohol as a beverage. When alcohol is denatured, in conformity with the federal law, it cannot be so used. The denaturation of alcohol under the federal law completely accomplishes the result for which the prescription or the affidavit under the Nevada law was intended.

Therefore, in our opinion, druggists may sell denatured alcohol without prescription or affidavit.

2. The law is silent in permitting the sale, by a druggist, of wines, except by implication, if then, yet according to the U.S. Pharmacopeia, sherry and white wines are used in making “wine of pepsin,” “wine of opium,” and “wine of ipecac.” May a druggist under this law, keep in stock, and continue to use in the legitimate compilation of these various wines, such wines as “sherry” and “white” wines?

This question is fully answered in a recent opinion (Atty. Gen. Opin. December 14, 1918)

wherein we concluded that:

Druggists may carry in stock and may sell for medicinal purposes, upon prescription, any United States Pharmacopeia or national formulary preparation in conformity with the Nevada pharmacy law, which includes whisky, brandy, and many other of the most intoxicating liquors.

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

BY WM. McKNIGHT, Deputy.

253. Officers—County Surveyor—Office For—Counties.

The Board of County Commissioners is not legally required to furnish the County Surveyor with an office.

–  –  –

MR. R.E. TILDEN, County Surveyor, Humboldt County, Winnemucca, Nevada.

DEAR SIR: We wish to acknowledge receipt of your letter, in which you state you are the duly elected, qualified and acting County Surveyor of Humboldt County, Nevada, and ask whether or not the county is legally required to furnish you with an office.

The Act creating the office of County Surveyor (Rev. Laws, 1664-1674) provides that such officer shall keep his office at the county-seat. There is, however, no provision, anywhere, which requires the County Surveyor to keep his office open for the accommodation of the public or that makes him the custodian of any public records to which the public are at all reasonable times entitled to access.

Under these circumstances, the law, as laid down by Judge Hawley, in the case of Owen v.

Nye County, 10 Nev. 338, is clearly applicable. It was there said:

We are of the opinion that the officer, who seeks to hold his county liable for the rent of his office, must be one who is by law made the custodian of the public records, to which the public are at all reasonable times entitled to access, or one that is by law required to keep his office open for the accommodation of the public and for the transaction of public business, whether he has business there of his own or that for which he is entitled to pay or not; and he must also show that he demanded of the Commissioners a suitable office for such purpose and that they had failed and refused to furnish it.

In view of the foregoing, it is our opinion that our office is not legally required to furnish you with an office.

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

BY WM. McKNIGHT, Deputy.

254. Public Schools—School Teachers’ Salaries—Quarantine—Epidemic.

Public school teachers are entitled to pay for their salaries during intermission caused by proclamation of quarantine on account of epidemic.

–  –  –

MRS. EDNA COVERT PLUMMER, District Attorney, Eureka, Nevada.

DEAR MRS. PLUMMER: Your favor of the 16th instant, in relation to pay of school teachers, received.

Section 104 of the School Code (Rev. Laws, 3343) was amended by Stats. 1917, p. 398, so

that it now reads as follows:

A school month shall consist of four weeks of five days each, and teachers shall be paid only for the time in which they are actually engaged in teaching;

provided, that when an intermission of less than six days is ordered by the Trustees no deduction of salary shall be made therefor; and provided further, that when on account of sickness or epidemic a longer intermission is ordered by the Board of School Trustees or by a duly constituted Board of Health, and such intermission or closing does not exceed thirty days at any one time, there shall be no deduction or discontinuance of salary or salaries therefor. The term “teacher,” as used in this Act, shall be understood to mean teachers, principals and superintendents of the elementary and secondary schools of this State.





Under our interpretation of the law, if the school is closed down for thirty days and then called in session for one day and then closed down for thirty days during the period of epidemic or quarantine embraced thereunder, the Trustees may lawfully pay the teachers full salaries.

Trusting this will give you the desired information, I am Yours very truly, EDW. T. PATRICK, Deputy Attorney-General.

255. Prohibition—Initiative Prohibition Act— “Near Beer.” A liquor called “near beer” containing less than one-half of one per cent of alcohol is not within the definition of “liquors” contained in section 1 of the Initiative Prohibition Act, and it is lawful for the manufacturer thereof to sell, deliver, and ship this liquor within the State of Nevada.

CARSON CITY, December 20, 1918.

CARSON BREWING COMPANY, Carson City, Nevada.

GENTLEMEN: I am in receipt of your letter of the 19th instant, wherein you stated that the “Tahoe Near Beer” manufactured by you contains less than one-half of 1 per cent alcohol.

You ask an opinion whether it is lawful for you to sell, deliver and ship this beer in the State of Nevada. Section 1 of the initiative Act defines the word “liquors” as “all beverages containing so much as one-half of 1 p er cent of alcohol by volume.” In my opinion this expression is the controlling feature of the whole of the definition.

Inasmuch as your near beer contains less than one-half of 1 per cent per volume, it is not within the operation of the law in question, and, therefore, it is lawful for you to sell, deliver and ship this beer within the State of Nevada.

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

256. Elections—Special Elections To Fill Vacancies—County Commissioners.

At special elections to fill vacancies, caused by death of the officer-elect, the candidate is to be designated by the party committee of the county, district, or state.

The Primary law does not apply to special elections.

A candidate may be nominated by petition of electors in conformity with section 31 (Stats. 1917, p. 287).

Under section 3797, Rev. Laws, the details of such special election is largely reposed in the hands of the County Commissioners. They have the right to regulate these questions and fix the time for the closing of designation of candidacy and provide other necessary regulations in their order calling the special election.

No filing fee is required of candidates designating their candidacy.

At such special election all persons qualified at the last preceding general election are entitled to vote. The provision of Stats. 1917, p. 439, requiring the County Clerk to compare the tally-sheets with the official register and cancel cards of those not having voted at the general election do not apply.

CARSON CITY, December 20, 1918.

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

DEAR SIR: I am in receipt of your favor of the 16th instant, asking the opinion of this office on several questions which have arisen in connection with the special election to be held in your county for the purpose of filling the vacancy in the office of State Senator of Nevada, caused by

the recent death of your state senator-elect and would answer the same as follows:

1. How are candidates to be designated at said election? Section 25 of the Act regulating the nomination of candidates (Stats. 1917, p. 286) provides for the filling of vacancies occurring after the holding of any primary election by the party committee of the county, district or State, as the case may be.

We are, therefore, of opinion that the candidates should be designated by the respective county central committees of Storey County.

2. Your second question is based upon the assumption that the candidates are designated as at primary elections, but we do not think the primary election law applies in this case, as section 2 specially provides: “This Act shall not apply to special elections to fill vacancies.”

3. As already stated, the candidates’ designation must be by the respective county central committees.

3a. A candidate may be nominated by petition of electors in conformity with section 31 of the primary election Act (Stats. 1917, p. 287).

4. The law does not fix the time for the closing of designation of candidacy. Under section 2797 the matter is largely reposed in the hands of the County Commissioners. They have the right to regulate these various questions and fix the time for the closing of the designations of candidacy and provide other necessary regulations in their order calling the special election.

5. As the primary law has already been above decided not to apply, no filing fee is required.

6. Section 16 (Stats. 1917, p. 43) requires the County Clerk to compare the tally-sheets with the official register and cancel the cards of those not having voted at such election. This provision is evidently for the purpose of purging the official register of those are dead or who have removed from the county or State.

Inasmuch as the new registration will not open until the 1st day of June of the year of the year 1920, it is the opinion of this office that said section 16 does not apply to the present case.

Therefore, in preparing the poll-list for this special election, the County Clerk should include therein the names of all who were qualified to vote at the general election in November and disregard all cancelations that he has made under the provisions of said section 16.

Trusting this will enable you to conduct the election in due form, I am Yours very truly, EDW. T. PATRICK, Deputy Attorney-General.

257. Employer and Employee—Counties—Municipalities—Police Department— Eight-Hour Law.

The provisions of section 6778, Rev. Laws, applies to the police department of a municipality.

–  –  –

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

DEAR SIR: IN response to your inquiry for an interpretation of Rev. Laws, 6778, in connection with the employees of the police department of a municipality, who are required to report at 6 o’clock a.m. and are on duty until 6 o’clock p.m., let me say that in the opinion of this office, said section applies to such case and the requiring of twelve hours each day from such employees is a violation of said section.

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

258. Prohibition—Initiative Prohibition Law—Intoxicating Liquors—Liquor License—Druggists.

Druggists may sell such liquors as are permitted by the prohibition law without the payment of a state liquor license.

Druggists may carry in stock and may sell for medicinal purposes, upon prescription, any United States pharmacopeia or national formulary preparation in conformity with the Nevada pharmacy law, which includes whisky, brandy, and many other of the most intoxicating liquors.

CARSON CITY, December 30, 1918.

HON. E.F. LUNSFORD, District Attorney of Washoe County, Reno, Nevada.

DEAR MR. LUNSFORD: Your letter, asking whether druggists are now required to have a state liquor license and also whether they can sell intoxicating liquor other than pure grain alcohol and wine, duly received.

Section 8 of an Act to provide revenue (Stats. 1915, p. 236) provides for the payment of such a license by druggists, but that section, in view of the initiative prohibition law, is no longer in force and effect; therefore, druggists can now sell such liquors as are permitted by the prohibition law without the payment of a state liquor license.

The other question is covered by the recent opinion of this office (Atty.-Gen. Opin., Dec. 14,

1918) in which said:

Druggists may carry in stock and may sell for medicinal purposes, upon prescription, any United States pharmacopeia or national formulary preparation in conformity with the Nevada pharmacy law, which includes whisky, brandy, and many other of the most intoxicating liquors.

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

BY WM. McKNIGHT, Deputy.

259. Prohibition—Initiative Prohibition—Intoxicating Liquors—Ministers— Wines.

Wine for sacramental purposes may be carried into a community or shipped into a community by a minister of the gospel.

–  –  –

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

DEAR MR. KENNY: I am in receipt of your favor of the 27th instant, asking two questions

concerning the initiative prohibition law. The first is:

May a person, for his own personal use, and not with the intention to give or sell it to another, carry intoxicating liquor on his person or in his automobile?

This identical question is now pending before the District Court of Washoe County, in a case wherein two men were arrested for having liquor on their person, were fined for this as a violation of the prohibition law, committed to jail, and have appealed to the court for writ of habeas corpus.

Under these circumstances, it would be well to await the decision of the District Court on this question before giving a definite answer.

Your second question is as follows:

May a minister of the gospel carry into a community, and also have shipped into a community, sacramental wines, to be used by himself and given to his congregation, at communion service?

In the opinion of this office, there is no doubt that wine, for sacramental purposes, may be carried into a community or shipped into a community by a minister of the gospel.

Yours very truly,

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