Grant and McNamee v. Payne

• Decision Date: 19 November 1940
• Docket Number: 3324.
• Citation: 107 P.2d 307,60 Nev. 250
• Parties: GRANT AND McNAMEE v. PAYNE, County Clerk.
• Court: Nevada Supreme Court

107 P.2d 307

60 Nev. 250

GRANT AND McNAMEE v. PAYNE, County Clerk.

No. 3324.

Supreme Court of Nevada

November 19, 1940

Original proceeding in mandamus by Archie C. Grant and Frank McNamee against Lloyd S. Payne, county clerk of Clark county, Nev to compel the clerk to place petitioners' names upon general election ballot as candidates for office of State Senator for Clark County.

Petition denied and proceeding dismissed.

TABER C.J., dissenting.

Frank McNamee, Jr., of Las Vegas, for petitioners.

Gray Mashburn, Atty. Gen., W. T. Mathews and Alan Bible, Deputy Attys. Gen., and Roland H. Wiley, Dist. Atty., of Las Vegas of Clark County, for respondent.

DUCKER Justice.

Original proceeding in mandamus to compel the county clerk of Clark County to place the names of Archie C. Grant and Frank McNamee upon the ballot of the general election to be held on the 5th day of November, 1940, as candidates respectively of the democratic and republican parties for the office of state senator for Clark County.

On the 8th day of November, 1938, L. R. Arnold was duly elected to the office of state senator of said Clark County, for the term of four years commencing on the 9th day of November 1938. Thereafter on or about the 3d day of January, 1939, he resigned from said office and a few days later Charles Lee Horsey was duly appointed to fill the vacancy therein. The latter qualified for and assumed the duties of said office and on the 29th day of July, 1940, resigned the same. On the 31st day of July, 1940, petitioners herein, Archie C. Grant and Frank McNamee, residents and electors of Clark County, each filed with the respondent clerk herein his declaration of candidacy for the purpose of having his name placed upon the democratic and republican primary election ballots for nomination respectively for the office of state senator of that county, and for the unexpired term existing for that office, caused by the resignation of said Horsey. No other person filed declarations for the office. Shortly after the primary election the respondent notified petitioners he would not place their names on the ballot for the coming November election.

Respondent filed an answer to the petition disclosing the foregoing facts, setting up his defense.

The question presented for determination was whether, under the Constitution and laws of this state, an election could be held for the office of state senator of Clark County at the November election in 1940. We concluded that such an election could not be held, and pursuant thereto entered an order denying the petition and dismissing the proceeding, counsel having stipulated that an order on any decision we reached could be made in advance of a written opinion. Our reasons for the order follow.

The only provision for filling a vacancy in the office of state senator is found in art. IV, sec. 12, of the State Constitution, as amended in 1922. It reads: "In case of the death or resignation of any member of the legislature, either senator or assemblyman, the county commissioners of the county from which such member was elected shall appoint a person of the same political party as the party which elected such senator or assemblyman to fill such vacancy; provided, that this section shall apply only in cases where no general election takes place between the time of such death or resignation and the next succeeding session of the legislature."

Petitioners contend that the words "general election" mean biennial election and by force of the proviso and certain statutes they mentioned, they were entitled to be voted for state senator of Clark County at the November election of this year. On the other hand the attorney general contends that there was no vacancy that could be legally filled at such election; but to the contrary, that the vacancy, by reason of said constitutional provision, could be legally filled only by appointment by the board of county commissioners of Clark County, and that the appointee would be entitled to hold such office until the day succeeding the general election in November 1942. The position of the attorney general is supported by reason and authority which persuaded us to the same conclusion. The meaning, we think, intended by the legislature and people of the term "general election" in the amendment, is the general election at which state senators are ordinarily elected. Under the constitution and statute enacted pursuant thereto, their term of office is for four years. Art. XVII, sec. 10, State Constitution, section 4780, N.C.L. In Clark County that term expires immediately after the general election in 1942. Art. IV, sec. 4, Stats. 1909, § 12, p. 10. If our construction of the term "general election" in the amendment is correct, no election can be had for state senator in Clark County except at such quadrennial election.

It is said that such construction would run counter to the provisions of sec. 2438, N.C.L., which declares: "A general election shall be held in the several election precincts in this state on the Tuesday next after the first Monday of November, one thousand nine hundred and eighteen, and every two years thereafter, at which there shall be chosen all such officers as are by law to be elected in such year, unless otherwise provided for."

There is no conflict in this. A general election is held every two years, but it is general only for the purpose of electing officers designated by law to be elected at such biennial periods. For instance, the election in 1940 was a general election as to those state senators whose terms expired in this year. As bearing on the supposed intention of the legislature and people in employing the term general election in art. IV, sec. 12, petitioners refer us to art. XVII, section 22, of the Constitution, providing for the filling of vacancies occurring in state offices other than legislative offices, but there the constitution itself declares what is meant by general election, by stating that at the next general election the vacancy shall be filled by election for the residue of the unexpired term. No such declared intention appears in the constitutional provision for filling vacancies occurring in legislative offices. The term general election stands alone, and by the great weight of authority it means an election for the purpose of selecting officers who are by law authorized to be elected at that time. State of Nevada v. Collins, 2 Nev. 351; State ex rel. Bridges v. Jepsen, 48 Nev. 64, 227 P. 588; State ex rel. Griffin v. Superior Court, 70 Wash. 545, 127 P. 120; People v. Col, 132 Cal. 334, 64 P. 477; People v. Hardy, 8 Utah 68, 29 P. 1118; McIntyre v. Iliff, 64 Kan. 747, 68 P. 633; State v. Claussen, 216 Iowa 1079, 250 N.W. 195; State ex rel. Evrard v. Roach, 269 Mo. 500, 192 S.W. 745; Norton v. Letton, 271 Ky. 353, 111 S.W.2d 1053, 1055; 20 C.J. 56. In Norton v. Letton, supra, it was said: "Elections participated in by the people are furthermore divided into 'general' and 'special' elections. The one (general election) is for the purpose of selecting 'an officer after the expiration of the full term of the former officer,' while the other (special election) may be one to fill a vacancy on a day other than the prescribed regular election day and before the arrival of the time of the general election for a full term ***."

The general rule of interpretation as to the meaning of the term general election is thus stated in State v. Claussen, supra [216 Iowa 1079, 250 N.W. 200]: "The next general election means the next general election at which,, in pursuance of law, a vacancy may legally be filled. Under all of the authorities called to our attention dealing with the subject, it is held that this does not necessarily mean the next ensuing general election, but the election at which the vacancy can be legally filled. [Citing the Nevada and other authorities.]"

We think State ex rel. Bridges v. Jepsen, cited in the above case, is controlling here. We there interpreted the phrase "next general election" to mean the election prescribed by law for the election of county officers. A former attorney general who represented respondent in that case took the same view. There is nothing in article IV, section 12, to indicate that a different conclusion is logical and would therefore justify us in overruling State ex rel. Bridges v. Jepsen, supra.

Petitioners insist that unless general election is held to mean the next biennial election, the proviso would be meaningless. They concede, however, that a situation could come about in which the proviso could become operative, but claim it is too remote for consideration. It is enough that a contingency could arise by which the proviso could become effective to rescue it from the charge of being a vain act.

Force is given to our construction of the term general election in the amendment by the fact that neither in the constitution or by statute is any provision made for electing a senator at any intervening biennial. The exercise of legislative power would be essential to give it efficiency. This consideration alone was sufficient to authorize the denial of the writ prayed for, even if petitioners' contention, that general election means biennial election, had been allowed, because it is well established that an election is not an inherent right in the people and cannot be held in the absence of legislation clearly authorizing the same. Sawyer v Haydon, 1 Nev. 75, 79; State ex rel. Bridges v. Jepsen, 48 Nev. 64, 227 P. 588; State v. Claussen, 216 Iowa 1079, 250 N.W. 195; State ex rel. McGee v. Gardner, 3 S.D. 553, 54 N.W. 606; People v. Col, 132 Cal. 334, 64 P. 477; State v. Ellison, 271 Mo. 123, 196 S.W. 751; State v. Kozer, 115 Or. 638, 239 P. 805; Williams v. Glover, Tex.Civ....