104 P.2d 183 | Nev. | 1940
In his complaint plaintiff, respondent here, alleges that defendant was not a qualified voter of the city of *163 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 canceled from and stricken from the list of qualified voters of the city of Las Vegas, Clark County, Nevada, and so remained stricken and canceled 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 16, 1911. Stats. of Nevada 1911, chap. 132, p. 145. Section 6 of said act was amended March 24, 1939. Stats. of Nevada 1939, chap. *164 155, 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 *165 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 sec. 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,
1. 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.,
2. 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,
In Trammell v. Griffin,
Respondent relies on the case of Caton et al. v. Frank,
Caton et al. v. Frank, supra, was not a case involving eligibility to, or qualifications for, office; and it is to be further observed that the statute in that case did not merely say "qualified voters," as in the case at bar, but "qualified voters of the city or town."
In cases not involving eligibility or qualifications for office, the courts differ as to whether a "qualified voter" must be registered in addition to being a qualified elector. In North Carolina registration is required. Such is the case also in South Carolina and Georgia; but in these two states their constitutions expressly require registration. McComb v. Robelen,
On the other hand, in addition to Kentucky and Tennessee, Delaware, Iowa and Washington also hold registration unnecessary to constitute one a qualified voter. McComb v. Robelen,
In McComb v. Robelen, supra, the statute read, "At such election every person qualified to vote at the school *170
election in the district shall be qualified to vote." 32 Del. Laws, c. 160, sec. 54. In the opinion, the chancellor said in part [
In Hindman v. Boyd, supra, the court said [
In view of the fact that Caton et al. v. Frank, supra, was decided nearly four years before the 1939 amendment to section 6 of the Las Vegas incorporating act was approved, it might at first be thought that in making said amendment the legislature, in using the words "qualified voters," had in mind the interpretation placed upon them in said case; but it must be remembered, as stated early in this opinion, that those words occurred in the original section 6, passed about twenty-four years before Caton et al. v. Frank was decided.
Some support is given respondent's position by the use of the words "a qualified voter under the provisions of this act" in sec. 2391 N.C.L. 1929, being section 32 of the general registration act. And it may be further argued that if the legislature meant nothing more than qualified electors when it used the words "qualified voters" in said sec. 6, they would naturally have said "qualified electors" rather than "qualified voters." On the other hand, however, in support of appellant's position, we have to consider that the expression "registered elector" occurs in said registration act in at least two sections, 9 and 15 (secs. 2368 and 2374 N.C.L. 1929), and has occurred in those sections from the time they were originally enacted in 1917 (Stats. of Nevada 1917, chap. 231, at pp. 426, 429) to their last amendment in 1935 (Stats. of Nevada 1935, chap. 50, pp. 110, 112) and that if, by the expression "qualified voters," the legislature of 1939 had intended that registration be required, they would naturally have used the word "registered," as was done, for example, by the legislature of *172
North Carolina when the words "qualified registered voters" were employed. Southerland v. Town of Goldsborough,
In the case at bar appellant was elected by a vote of the people. He should not be ousted, unless clearly ineligible under some constitutional or statutory provision. In the light of the authorities cited, we are unable to say it is clear that registration was required in order to constitute appellant a qualified voter within the meaning of said sec. 6. As it is not questioned that appellant was at all times a qualified elector, it becomes unnecessary to determine the other questions presented on this appeal.
The judgment and order appealed from are reversed, and the cause remanded to the district court for judgment in accordance with the views herein expressed.