Gilbert v. Breithaupt

• Decision Date: 29 June 1940
• Docket Number: 3298.
• Parties: GILBERT v. BREITHAUPT.
• Court: Nevada Supreme Court

104 P.2d 183

60 Nev. 162

GILBERT v. BREITHAUPT.

No. 3298.

Supreme Court of Nevada

June 29, 1940

Appeal from District Court, Eighth District, Clark County; Wm. D Hatton, Presiding Judge.

Action by Jack Breithaupt against C. V. T. Gilbert, to set aside a certificate of election and declare office vacant. From a judgment for plaintiff, defendant appeals.

Reversed and remanded.

Ham & Taylor, of Las Vegas, for appellant.

Harold M. Morse, of Las Vegas, for respondent.

TABER Chief Justice.

Respondent commenced an action in the Eighth Judicial District Court County of Clark, praying that court to declare null and void the certificate of election issued to appellant as city commissioner of the City of Las Vegas, and to declare said office vacant.

In his complaint plaintiff, respondent here, alleges that defendant was not a qualified voter of the City of Las Vegas, or of the County of Clark, or of the State of Nevada, for at least two years immediately preceding his election, and was therefore not a qualified candidate for said office, either at the time he signed his declaration of candidacy or at the time of his election. The complaint further alleges: "That plaintiff and contestant alleges and states that said C. V. T. Gilbert defendant and contestee, within two years immediately preceding the general municipal election of the city of Las Vegas, Clark County, Nevada, as hereinbefore set forth, did not register as required by the constitution and laws of the State of Nevada to become a qualified voter of the city of Las Vegas, county of Clark, State of Nevada, and that by reason thereof, to-wit; on November 21, 1938, his name was cancelled from and stricken from the list of qualified voters of the city of Las Vegas, Clark County, Nevada, and so remained stricken and cancelled from the list of qualified voters of the city of Las Vegas, Clark County, Nevada, from said date continuously to and including May 2, 1939, and date of the general municipal election of the city of Las Vegas Clark County, Nevada, and therefore ineligible to be a candidate for, or to be elected to the office of city commissioner of the city of Las Vegas, Clark County, Nevada, and therefore ineligible to be declared elected to said office, or to qualify for, or hold said office."

Defendant (appellant) demurred to the complaint upon the ground, among others, that it does not state facts sufficient to constitute a cause of action. Defendant did not file an answer. The cause came on for trial, both parties being represented, and thereafter the district court rendered its decision in favor of plaintiff as prayed in his complaint. Defendant's motion for a new trial was denied.

The City of Las Vegas was incorporated by act of the legislature approved March 16th, 1911. Stats. of Nevada, 1911, Chap. 132, p. 145. Section 6 of said act was amended March 24th, 1939. Stats. of Nevada, 1939, Chap. 155, pp. 209, 210. The first sentence of the section, as amended, reads: "The mayor, each of the four commissioners, the city clerk, the city attorney, and the judge of the municipal court shall not be less than 25 years of age, citizens of the United States, and for at least two years immediately preceding their election residents of the city of Las Vegas, county of Clark, State of Nevada, qualified voters who are property owners and taxpayers on real estate or personal property, situate in the city of Las Vegas, county of Clark, State of Nevada, as shown on the assessment rolls of said city of Las Vegas, county of Clark, State of Nevada, on file in the office of the county assessor and ex officio city assessor of the county of Clark, State of Nevada, for at least two years immediately preceding the year in which said election is held."

The corresponding part of the original section 6 read as follows: "The mayor and each of the said four commissioners shall not be less than 25 years of age, citizens of the United States, and for at least two years immediately preceding their election residents of the city of Las Vegas, qualified voters who are property owners and taxpayers in said city."

Respondent contends that to be a qualified voter within the meaning of said section 6, one must not only have the qualifications of an elector set forth in the state constitution, but must further be legally registered. One of appellant's contentions is that registration is not required to make one a qualified voter within the meaning of said section.

Section 1 of Article II of the constitution of Nevada provides, in part, that: "All citizens of the United States (not laboring under the disabilities named in this constitution) of the age of twenty-one years and upwards, who shall have actually, and not constructively, resided in the state six months, and in the district or county thirty days next preceding any election, shall be entitled to vote for all officers that now or hereafter may be elected by the people, and upon all questions submitted to the electors at such election ***."

Section 6 of said Article II reads: "Provision shall be made by law for the registration of the names of the electors within the counties of which they may be residents, and for the ascertainment, by proper proofs, of the persons who shall be entitled to the right of suffrage, as hereby established, to preserve the purity of elections, and to regulate the manner of holding and making returns of the same; and the legislature shall have power to prescribe by law any other or further rules or oaths as may be deemed necessary as a test of electoral qualifications."

Section 3 of Article XV of the state constitution provides, in part, that "No person shall be eligible to any office who is not a qualified elector under this constitution." It is provided in § 4766, N.C.L.1929, that "No person who is not a qualified elector shall be eligible to any office of honor, profit, or trust, in and under the government and laws of this state."

In State ex rel. Schur v. Payne, 57 Nev. 286, 63 P.2d 921, this court approved the rule that all persons are equally eligible to office who are not excluded by some constitutional or legal disqualification; and that the right of the people to select from citizens and qualified electors whomsoever they please to fill an elective office is not to be circumscribed except by legal provisions clearly limiting the right.

The right to hold public office is one of the valuable rights of citizenship. The exercise of this right should not be declared prohibited or curtailed except by plain provisions of law. Ambiguities are to be resolved in favor of eligibility to office. In Carter v. Commission on Qualifications of J. A., 14 Cal.2d 179, 93 P.2d 140. In 46 C.J., at p. 937, § 32, it is said: "Statutes imposing qualifications should receive a liberal construction in favor of the right of the people to exercise freedom of choice in the selection of officers. Furthermore, disqualifications provided by the legislature are construed strictly and will not be extended to cases not clearly within their scope ***."

Respondent has not cited one case involving eligibility to office or qualifications to hold office where it was held that registration was necessary to make the candidate or person elected a qualified voter. On the other hand, there are at least two jurisdictions holding that in such cases registration is not required to make one a qualified voter.

In Meffert v. Brown, 132 Ky. 201, 116 S.W. 779, 780, 1177, the question was as to the eligibility of a city commissioner. The statute provided that: "No person shall be eligible to any office who is not at the time of his election a qualified voter of the city, and who has not resided therein three years preceding his election." Ky.St. § 2746. In the court's opinion the Chief Justice of the Court of Appeals said: "The fact that Wood did not register cannot affect the question of his eligibility to the office of commissioner of the sinking fund. The act of registering is only one step towards voting, and it is not one of the elements that makes the citizen a qualified voter. If at the time of his election as a commissioner of the sinking fund Wood had been a resident of the city three years and by registering before any election during that time would have been entitled to vote at such election, would his failure to register have destroyed his legal status as a qualified voter? Obviously not; the only legal effect of the failure to register would be to deprive him of a vote in the election for which the registration was required. The term 'qualified voter' is defined by section 145 of the Constitution in declaring who shall be entitled to vote. One may be a qualified voter without exercising the right to vote. Registering does not confer the right; it is but a condition precedent to the exercise of the right. When the defendant, Wood, was brought into the city of Louisville, he became as fully eligible to the office he now holds as if he had resided in Louisville three years, and in the precinct 60 days preceding his election, and had during the whole of that time registered previous to each city, county, or state election, as required by law."

In Trammell v. Griffin, 141 Tenn. 139, 207 S.W. 726 the eligibility of the defendant to hold the office of mayor was challenged. The statute read: "No person shall be elected Mayor who is not at the time of his election a citizen of the State of Tennessee, and has not been for six months, and is not thus a bona fide citizen of and voter in said city." Acts Tenn. 1903, c. 336, § 13. In the opinion of the court, Justice Green said in part: "Does the word 'voter,' as used in said charter, mean a person having the qualifications entitling him to vote, or does it mean such a person who has...