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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 intention of the Legislature controls the courts, not only in the construction of an Act, but also in determining whether a former law is repealed or not; and when such intention is manifest it is to be carried out, no matter how awkwardly expressed or indicated. (Thorpe v.

Schooling, 7 Nev. 15.) In our opinion, the law passed in 1911 (Rev. Laws, 3473-3477), as amended in 1913 (Stats. 1913, p. 54), stands unrepealed until February 1, 1919, and emergency loans may, until such time, be made under its provisions.

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By WM. McKNIGHT, Deputy.

159. County Board of Education--School Contracts.

It is legal for a County Board of Education to enter into a contract with a corporation of which one of the members of its board is a stockholder.

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MR. JOHN H. CAZIER, Foreman Elko County Grand July, Wells, Nevada.

Dear Mr. Cazier: Pursuant to your request for an opinion from this office on the question as to whether or not it is legal for a County Board of Education to enter into a contract with a corporation of which one of the members of such board is a stockholder, we beg to reply as

follows:

There is no direct provision in our laws relative to the matter, and it therefore becomes necessary to ascertain whether there be anything of an indirect nature. Unless the contract between the parties indicated is either directly or indirectly prohibited, the same is, of course, legal.

By referring to section 3309 of the Revised Laws it is seen that:

No trustee shall be pecuniarily interested in any contract made by the Board of Trustees of which he is a member.

In a former opinion from this office (Opinions Attorney-General, 1913-1914, p. 81) it was held that a contract of a school district in which one of the Trustees is pecuniarily interested, directly or indirectly, is void. If the same rule can be said to apply to members of a County Board of Education as well as to Trustees, then no legal contract can be entered into between the County Board of Education and a corporation of which one of the members of such board is a stockholder. The reason for the rule relative to Trustees is because of the positive provision of the statute above quoted, but there is no such statute covering contracts by the County Board of Education and the rule is not applicable.

The only provision that might be said to be sufficiently comprehensive to make the above-mentioned statute applicable to the County Board of Education is found in section 3423 of

the Revised Laws, reading as follows:

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This statute makes the high school subject to the same laws as are other schools, but it contains nothing from which even an inference might be drawn that the members of the County Board of Education are subject to the same laws as are School Trustees. It certainly cannot be said that the County Board of Education is the county high school, yet this must be done in order to make the law relative to contracts with School Trustees applicable to County Boards of Education. Both sections are incorporated in the same general law, and the latter section expressly mentions county high schools, but does not mention County Boards of Education.

In accordance with the maxim “expressio unius est exclusio alterius,” where a statute enumerates the things upon which it is to operate, it is to be construed as excluding from its effect all those not expressly mentioned. (36 Cyc. 1122.) Thus the statute expressly mentioning county high school excludes from its operation County Board of Education. Had the Legislature intended to make the Board of Education subject to the same laws governing School Trustees, it would have used language indicating such intention.

In view of the foregoing we are of the opinion that it is legal for a County Board of Education to enter into a contract with a corporation of which one of the members of such board is a stockholder.

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160. State Quarantine Officer--Public Health--Glanders--Horses.

Horses which upon the test appear to be infected with glanders may be destroyed under the provisions of section 8, chapter 280, Stats. 1913, p. 459.

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HON. EDWARD RECORDS, State Quarantine Officer, Reno, Nevada.

Dear Sir: In answer to your favor of the 26th ultimo, asking procedure for destruction of horses which upon test appear to be infected with glanders, let me say that, in the opinion of this office, the provisions of section 8, chapter 280, Stats. 1913, seem to be the only provision contained in our laws for such destruction.

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161. State Highway Department--Acquisition of Right of Way--Condemnation Proceedings--District Attorneys.

Counties through which the state highway routes pass may authorize expenditures of moneys in excess of amounts of the state highway fund provided for in section 10 of the “Act to provide a general highway law for the State of Nevada.” (Stats. 1917, p. 309.) The County Commissioners may make such expenditures for the acquisition of rights of way for such portion of the state highway as lies within their respective counties.





District Attorneys have no authority to institute condemnation proceedings to acquire rights of way in the name of the State without authority from the office of Attorney-General, but such authority will readily be granted to any District Attorney.

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

Dear Sir: I am in receipt of your favor of the 26th ultimo, asking certain in regard to “An Act to provide a general highway law for the State of Nevada.” (Stats. 1917, p. 309.) It seems that certain counties of the State have, by resolution of their various Boards of County Commissioners, agreed to furnish in the name of the State certain pieces of right of way, and that there are many reasons why the various County Commissioners could better do this, chief among which is that they are thoroughly acquainted with local conditions and the people from whom the

right of way is to be secured. In view of this you ask the following questions:

1. Have the various Boards of County Commissioners the authority to expend county funds for the purpose of acquiring title in the name of the State to certain parcels of land needed for a right of way of the state highway system, and would the fact that they did that be a violation of section 21 of an Act to provide a general highway for the State of Nevada, approved March 23, 1917?

2. In case the County Commissioners of a county undertook to furnish a right of way for our purposes in that county, would the District Attorney have the authority to institute condemnation proceedings to acquire the right of way in the name of the State, or would authority need be secured by him from your office, and would you grant such authority?

The first question is apparently covered by section 21 of the highway Act, which reads as

follows:

Sec. 21. In all cases of a highway constructed under the provisions of this Act, which is located or relocated over a new right of way, such right of way shall be acquired by the Department of Highways in the name of the State, either by donation by the owners of the land over which such highway shall pass, or by agreement between such owners and the Department of Highways or through the exercise by the Department of Highways in the name of and on behalf of the State of the power of eminent domain in the same manner as provided for acquiring property for other public uses, and the entire cost of such right of way shall be paid out of the State Highway Fund. Any damages that may be sustained by any person by the construction or alteration of any highway under the provisions of this Act shall be investigated and determined by the State Highway Engineer, the same to be approved by the Board of Highway Directors, and shall be paid as other claims against the State are paid.

It will be observed therefrom that in cases of highways to be constructed, which are located or relocated over a new right of way, such right of way shall be acquired by the Department of Highways in the name of the State, either by donation of the owners of the land over which such highway shall pass or by agreement between the owners and the Department of Highways or through the exercise by the Department of Highways in the name of and in behalf of the State of the power of eminent domain, and apparently the entire cost of such right of way must be paid out of the State Highway Fund.

It is stated above that apparently the entire cost of right of way must be paid out of the State Highway Fund, but on further examination of said Act it appears that said section 21 is

modified by section 32 of said Act, which provides as follows:

Sec. 32. Counties through which the state highway routes pass may, through the Board of County Commissioners, authorize the expenditures of moneys in excess of the amount of the County-State Highway Fund provided for by section 10 of this Act upon the state highway within their respective counties.

In accordance with the cardinal rule in the construction of statutes that later sections contrary to earlier sections in the same Act govern as being the latest expression of legislative will, the provisions of section 21 must be construed in connection with section 32.

It appears therefrom that the counties through which the state highways routes pass may authorize expenditures of moneys in excess of the amounts of the State Highway fund provided for in section 10 of the Act, and, there being no restriction as to the purpose for which such expenditures of moneys may be made, it is the opinion of this office that the County Commissioners may make such expenditures for the acquisition of rights of way for such portion of the state highway as lies within their respective counties.

In answer to your second question, let me say that the various District Attorneys have no authority to institute condemnation proceedings to acquire rights of way in the name of the State without authority so to do from this office, but such authority would readily be granted to any District Attorney desiring to institute such action upon application in the name of the State.

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162. Public Health--County Health Officer--Physicians and Surgeons.

A physician may forward his obstetrical reports directly to the county health officer.

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DR. S. L. LEE, Secretary of the State Board of Health, Carson City, Nevada.

Dear Doctor: You have shown me a letter from a physician in the State complaining that a deputy did not forward his obstetrical reports promptly to the local health officer, and inquiring whether or not he might make such reports direct to the county health officer.

I am of opinion that, under section 13 of the State Board of Health Act, such reports may be made direct to the county health officer.

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HON. F. N. FLETCHER, Secretary of the Nevada Tax Commission, Carson City, Nevada.

Dear Sir: Your oral request for an opinion as to whether or not the lands of the Central Pacific Railroad Company, which have been surveyed, but on which the surveys have not been officially approved, are subject to taxation, duly received.

This question seems to be thoroughly covered by the case of State v. Central Pacific R. R.

Co., 21 Nev. 94, 25 Pac. 442, wherein it was held that the unsurveyed lands acquired by this company are exempt from taxation by the State. The court there took the position that none of the land granted to this company was subject to taxation until it had been located within the congressional township by an actual survey and establishment of the lines under the authority of the United States and the survey had been approved by the proper United States SurveyorGeneral.

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By WM. McKNIGHT, Deputy.

164. County High Schools--Emergency Interest-Bearing Warrants.

Emergency interest-bearing warrants may be issued for building the dormitory and gymnasium at Wells.

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HON. E. P. CARVILLE, District Attorney, Elko, Nevada.

Dear Mr. Carville: I am in receipt of your favor of the 8th instant, asking whether interestbearing warrants to be used in connection with the fund now existing under Stats. 1915, p. 344, for building a dormitory and gymnasium at Wells, Nevada, could be issued.

It seems that there is now some $15,000 in the fund, but this sum is insufficient for building the dormitory. It further appears that two advertisements had been made for the construction of such dormitory and gymnasium, but in each case the bids had been considerable higher than the amount of money available.

On November 23, 1917, I gave you an opinion that interest-bearing warrants could be issued for the purpose of equipping the dormitory and high-school building at Elko.

I see no difference whatever between the two cases and am, therefore, of the opinion that interest-bearing warrants may be issued by the County Board of Education to make up the deficiency existing between the money now on hand under the above-mentioned Act and the amount necessary for the construction of a dormitory and gymnasium at Wells.

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165. Official Advertising--Newspapers.

Under the provisions of section 9, Stats. 1915, p. 346, authorizing the issuance of certain bonds “to provide for construction, equipment, and furnishing of high-school dormitories in the towns of Elko and Wells,” the County Board of Education is governed by the general law in reference to official advertising (Rev. Laws, 1530) which requires advertising for a period of thirty days.

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MR. GEORGE C. JENSEN, Secretary, County Board of Education, Elko, Nevada.



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