State ex rel. Conklin v. Buckingham

• Decision Date: 25 October 1938
• Docket Number: 3250.
• Citation: 83 P.2d 462,58 Nev. 450
• Parties: STATE ex rel. CONKLIN v. BUCKINGHAM, County Clerk, etc.
• Court: Nevada Supreme Court

83 P.2d 462

58 Nev. 450

STATE ex rel. CONKLIN v. BUCKINGHAM, County Clerk, etc.

No. 3250.

Supreme Court of Nevada

October 25, 1938

Original proceeding in mandamus by the State of Nevada, on relation of N.E. Conklin, against D. M. Buckingham, County Clerk of the County of Mineral, Nevada, and ex officio registrar of said county, to compel defendant to purge the register of voters of certain names.

Petition dismissed.

N. E Conklin, in pro. per.

No appearance for respondent.

TABER Justice.

On September 10th of the present year, petitioner applied to this court for a writ of mandamus commanding the County Clerk of Mineral County, as Ex-Officio Registrar, to purge the register of voters of the names of forty-six allegedly illegal voters and registrants, most of whom, according to the allegations of the petition, were men of the United States Marine Corps and their wives. The petition was based upon the grounds "That said persons are not bona fide residents of the State of Nevada and of the County of Mineral, neither are they, or any of them eligible to be registered as qualified electors or as voters of the County of Mineral, State of Nevada, for the reason that at the time of the enlistment of said Marines the County of Mineral State of Nevada, was not their, or his place of residence."

None of the forty-six persons listed in the petition was made a party to this proceeding, nor was any process or notice served upon any of them. They were not, nor was any of them, represented by counsel; but, by consent of the petitioner and with the permission of the court, Captain George W. Walker addressed the court in their behalf. It was stipulated that a general demurrer be considered as having been filed, and that the allegation of nonresidence be considered as having been denied. A written "Memorandum of Law," evidently prepared by an attorney, but not signed, was filed in behalf of said forty-six persons. It was agreed that as soon as the court reached a decision, its order or judgment might be made and entered--the court's opinion to be filed later. On September 30th the proceeding was dismissed.

Sec 9242, Nev.Comp.Laws 1929, provides in part that the writ of mandamus may be issued "to compel the performance of an act which the law especially enjoins as a duty resulting from an office, trust, or station ***." There is no statutory provision requiring or authorizing any registry agent, upon demand of an elector, to remove from the list of registered voters the name of any person upon the ground that he or she is not a bona fide resident.

Sec. 25 of "An Act regulating the registration of electors for general, special, and primary elections," Statutes of Nevada, 1917, Chap. 231, p. 425, at p. 433 (Comp. Laws, § 2384), expressly authorizes district court proceedings to compel the county clerk to make and enter the name of any qualified elector in the precinct register; but neither this not any other section of our statutes provides for such proceedings to compel the clerk or any registry agent to purge the registry list by striking therefrom the names of persons who do not possess the necessary residential qualifications for voting.

Sec. 21 of said 1917 registration Act, as amended, Statutes of Nevada 1927, Chap. 171. p. 290 (Sec. 2380, Nev.Comp.Laws 1929), provides that the county clerk must cancel any registry card in the following cases: "The county clerk must cancel any registry card in the following cases: 1. When he has a personal knowledge of the death of the person registered or when a duly authenticated certificate of the death of any elector is filed in his office. 2. When the insanity of the elector is legally established. 3. Upon the production of a certified copy of the judgment of conviction of any elector of felony. 4. Upon the production of a certified copy of the judgment of any court directing the cancellation to be made. 5. Upon the request of any elector who desires to change his politics, or to affiliate with any political party, provided said change is made forty-five days before any primary election. If any card is canceled by reason of this subdivision 5 the elector may immediately reregister. 6. Upon on proof, by affidavit, of one or more electors filed with the county clerk of the removal from the county of any person as provided by section 5 of this act. 7. At the request of the party registered. If any card is so canceled the party shall not be reregistered within forty-five days of such cancellation." The grounds upon which the petition in the instant proceeding is based are not included in any of the aforesaid six grounds for cancellation of registry cards.

In Sec 6 of "An Act to provide for the registration of the names of electors, and to prevent fraud at elections," Statutes of Nevada, 1869, Chap. 90, p. 140; at p. 142, it was expressly provided, inter alia, that "any elector may also apply to the District Court of his district, or the Judge...