State ex rel. Bible v. Malone

• Decision Date: 18 May 1951
• Docket Number: No. 3646,3646
• Citation: 231 P.2d 599,68 Nev. 32
• Parties: STATE ex rel. BIBLE, Attorney General v. MALONE.
• Court: Nevada Supreme Court

Page 599

231 P.2d 599

68 Nev. 32

STATE ex rel. BIBLE, Attorney General v. MALONE.

No. 3646.

Supreme Court of Nevada.

May 18, 1951.

W. T. Mathews, Atty. Gen., George P. Annand, Robert L. McDonald and Thomas A. Foley, Deputy Attys. Gen., for relator.

Edwin J. Dotson and George E. Franklin, Jr., Las Vegas, for respondent.

EATHER, Justice.

This is an original proceeding in this court in quo warranto, instituted by the State of Nevada, on the relation of the Attorney General, against Clem Malone, claiming that respondent Malone is wilfully usurping, intruding into and unlawfully holding the office of County Commissioner of Clark County. After issue was joined on the complaint of the relator and the answer of respondent, following our decision overruling the demurrer to the complaint, see State ex rel. Bible v. Malone, Nev., 226 P.2d 277, we appointed Honorable Frank McNamee, a District Judge of Clark County, as referee for this court for the taking of testimony and exhibits on the part of both relator and respondent, and such transcript of testimony and exhibits are now before this court in documentary form.

Relator contends that respondent was elected in 1948, as a candidate at both the primary and general election, pursuant to an act of the Legislature of 1915, as amended, which attempted to establish county commissioner districts in Clark County. Nevada Statutes, 1915, p. 146, chap. 125, as amended Nevada Statutes, 1923, p. 251, chap. 141, as amended Nevada Statutes, 1925, p. 139, chap. 103. While both parties concede that the act in question is unconstitutional in their respective briefs, it is not for the parties to stipulate, but for courts to decide the unconstitutionality. We hold that the act of 1915 establishing county commissioner districts for Clark County is unconstitutional and void as a local and special law, not uniform in application as required by sections 20 and 21 of Article IV of the constitution. In the same manner the act in question violates sections 25 of 26 of Article IV. McDonald v. Beemer, Nev., 220 P.2d 217.

Respondent, however, contends that he was not elected pursuant to the unconstitutional law, but that his election was by virtue of sections 1935-1936, N.C.L.1929. Said sections provide as follows:

' § 1935. At the general election of the several counties in this state, in A.D. eighteen hundred and seventy, by the qualified electors of each county, a board of county commissioners, to consist of three members, shall be elected, to possess such qualifications and to have such powers as hereinafter provided; provided, that in any county where, at the last general election, there were polled four thousand or more votes, such board shall consist of five members. * * * Any vacancy or vacancies occurring in any board of county commissioners shall be filled by appointment of the governor, and such appointee or appointees shall hold his or their offices until the first Monday of January following the then next general election, except as provided otherwise in this act.'

' § 1936. Said commissioners shall be qualified electors of their respective counties, and shall enter upon their duties on the first Monday of January succeeding their election, and shall hold their offices two or four years, as the case may be, as provided in this act; and the term of office of two years or four years, as the case may be, shall expire at twelve o'clock p. m. of the day preceding the first Monday in January following a general election. No county or township officer shall be eligible to the office of commissioner. On entering upon the discharge of the duties of his office, each commissioner, whether elected or appointed under the provisions of this act, shall take and subscribe to the oath of office as prescribed by law; provided, that in case such commissioner shall neglect or refuse, during the period of fifteen days from the after the first Monday of January succeeding his election, to take the oath of office as herein directed, his office shall be deemed vacant, and such vacancy shall be filled by appointment as provided in section 1 of this act; and, provided further, that the term of office of a person appointed to the office of county commissioner shall not by virtue of the appointment extend beyond the hour of twelve o'clock p. m. of the day preceding the first Monday of January next following a general election.'

The evidence does not bear out the contention of respondent. It appears that the County Clerk of Clark County followed the provisions of the 1915 act in conducting both the primary and general elections of 1948 relating to the office of County Commissioner. On July 8, 1948, respondent filed his declaration of candidacy for the office of County Commissioner with the clerk. In the handwriting of the chief deputy County clerk there appears the designation 'Dist. No. 2' under the title of the office denominated 'Office of County Commissioner 4 yrs.' While respondent disputes that he ascribed the declaration of candidacy with the addition of the words 'Dist. No. 2' written in, but claims that such was added after he had signed his declaration, we are not concerned with what office respondent thought he was running for, but for what office the election was actually conducted.

Consistent with the notation made on the declaration of candidacy, the clerk published notices in a newspaper of general circulation that nominations were open for the primary election to be held September 7, 1948. Among the offices to be filled was that of 'County Commissioner, Dist. No. 2.' The official primary ballot listed respondent with two others as Democratic party candidates 'For County Commissioner District No. 2, Four Year Term'. So, too, the official ballot for all precincts at the general election of November 2, 1948, carried respondent's name as the Democratic candidate opposed by the Smith, Republican, which ballots contained the words 'For County Commissioner, District No. 2, Four Year Term.' Excerpts of the minutes of September 11, 1948 of the county commissioners of Clark County covering the canvass of the votes of the primary election of September 7, 1948 show that the tally of the votes cast for respondent was headed by the caption 'County Commissioner, District No. 2, Four Year Term.'

In the same manner, following the general election of November 2, 1948, the minutes of the meeting of the county commissioners on November 4, 1948 tallied the votes cast for respondent under the heading of 'County Commissioner, District No. 2, Four Year Term' and noted that: 'Clem Malone having received the highest number of votes cast for County Commissioner, District No. 2, Four Year Term, it was by the Board Ordered that the said Clem Malone by and he hereby is declared elected to the office of County Commissioner from District No. 2, Four Year Term; * * *'

Respondent states that the insertion of the words 'District No. 2' in all notices, ballots and official records relating to the election of respondent constituted purely ministerial acts of the county clerk and others in no way changing the form of the elections from those which might have been conducted under sections 1935 and 1936, N.C.L., set forth above. He points out that while he was designated as a candidate from District No. 2, such designation was meaningless by reason of the fact that voters of the entire county were privileged to cast their vote for or against him, and that the office imposed countywide duties and responsibilities without limitation to any particular area or district. But while balloting was general throughout the county, the testimony of the clerk was to the effect that declaration of candidacy for the office to which respondent was elected was limited to those persons who resided in the area delineated in the 1915 statute as amended, an area called District No. 2. When a declaration of candidacy was filed, the place of residence of the declarant was ascertained by the clerk, and if it was determined that the declarant for the office lived within a geographical area designated District No. 2, the declaration was, if otherwise in proper form, accepted for candidacy. While it is true that the clerk testified that on the occasion of the 1948 election no one was refused the privilege of filing for the office on the ground of lack of residence within the so-called District No. 2, the manner and...