Culverwell v. Ross ( 1938 )

The rule is well settled that in construing statutes prescribing a time for the performance of acts by public officers and in the performance of which the public has an interest, if the statute itself does not prohibit the doing of such acts after the expiration of the time fixed, the act is deemed valid if performed afterwards. In this instance, the statute itself does not prohibit the clerk from filing declarations of candidacy for a public office under the primary election law. But the strongest point in support of the petition is that the statute itself expressly provides that "nothing in this act shall be construed so as to interfere with any duty now required of any public official under any of the election laws of this state." The legislature not having limited the time to twelve o'clock noon, if Saturday be the last day for filing, and having inserted the above proviso in the office hours law, it cannot be argued that it intended to close the doors of the county clerk's office in matters respecting and protecting the rights of candidates and electors under the primary election law. State v. Brodigan, 37 Nev. 458, 142 P. 520; Brid v. Beggs (Kans.), 227 P. 529. We think the conclusion is inescapable that when the legislature said that declarations of candidacy shall be filed during regular office hours, whatever hour marked the ending of the office-hour period of the county clerk's office on the last day such filings could be made constituted the dead-line, and that after such hour no such filings could be legally made.

The duty of the county clerk is plain under the primary election law; i.e., to file the declarations of candidacy during the hours of the day that such office is to remain open as fixed in the office hours act. The proviso in section 2045 N.C.L. does not qualify or modify section 2409. Both sections, even when construed in pari materia, must be allowed to stand, and effect given to both. Ex Parte Ah Pay, 34 Nev. 283, 119 P. 770; Presson v. Presson, 38 Nev. 203, 147 P. 1081; State v. Esser,35 Nev. 429, 129 P. 557.

OPINION This is an original proceeding for a writ of mandate to compel the respondent, Sarah Gentry Ross, as county clerk of the county of Lincoln, State of Nevada, to place the name of petitioner, Charles Culverwell, upon the official primary election ballot for nomination, by the democratic party, as a candidate for the office of sheriff of said Lincoln County, to be voted for at the primary election to be held September 6, 1938.

Respondent in justification of her actions in refusing to accept petitioner's declaration of candidacy and her refusal to place petitioner's name on said primary election ballot, alleges in substance: "That petitioner offered such declaration for filing on Saturday afternoon of August 6, 1938, the last day allowed by law for filing the same; and that the statute fixing the regular office hours of the various county clerks of the State of Nevada, namely, sec. 2045 N.C.L., provides that her office be kept open only from 9 o'clock a.m. to 12 o'clock noon, on Saturdays; that sec. 2408 N.C.L. provides that such declaration must be filed not less than thirty days prior to the primary election; and that sec. 2409 N.C.L. provides that such declaration shall be filed during regular office hours. The sole question to be determined in this proceeding is: Was the respondent, as such county clerk, required by law to accept for filing, on Saturday afternoon, the declaration of candidacy of petitioner and place his name on the official primary election ballot as a candidate for nomination by the democratic party when such last day for filing such nomination falls on Saturday? The petition alleges, and the answer admits, the facts to be substantially as follows: That the petitioner is a qualified elector of the county of Lincoln, State of Nevada; that petitioner is a member of the democratic party; that on Saturday, the 6th day of August 1938, at the hour of 3:25 p.m. of said day he delivered to respondent, as such county clerk, his declaration of candidacy together with the necessary filing fee of $40 for the purpose of having his name placed upon the official primary ballot as a candidate for nomination by the democratic party for the office of sheriff of said Lincoln County at the primary election to be held on September 6, 1938; that said 6th day of August was Saturday and the last day for filing declarations of candidacy and that respondent refused to place the name of petitioner upon said official primary ballot for the reason that the said declaration of candidacy was presented for filing on Saturday afternoon and not within regular office hours as fixed by sec. 2045 N.C.L.

The matter was orally argued by counsel for the respective parties and submitted to the court and by stipulation in open court it was ordered that the court upon reaching its conclusion should enter its order in accordance therewith and later file its decision. By a majority conclusion the court entered its order on the 17th day of August 1938, directing that a peremptory writ issue, commanding respondent to place petitioner's name upon the official primary ballot of the primary election to be held on September 6, 1938, as a candidate for nomination by the democratic party for the office of sheriff of said Lincoln County, Nevada. In determining the question before the court it is simply a matter of construing secs. 2045, 2408 and 2409 N.C.L. 1929, and of acts of which said sections may be amendments. It will be noted that sec. 2045 N.C.L. which fixes the regular office hours of various county officers, including the several county clerks, of this state, was originally enacted March 29, 1907, page 373, and provides that certain county officers, including county clerks, "shall keep an office at the county seat of their county, which shall be kept open on all days except Sundays and nonjudicial days, from nine o'clock a.m. to 12 o'clock a.m., and from one o'clock p.m. to five o'clock p.m. for the transaction of public business; * * *." So it will be noted that said sec. 2045 N.C.L., as originally enacted, required county clerks to keep their offices open on Saturday afternoons. It will also be noted that said sec. 2408 N.C.L., which was a part of the act of March 23, 1917, regulating the nomination of candidates for public office in the State of Nevada, provides, "Every candidate for nomination for any elective office not less than thirty days prior to the primary shall file a declaration * * * of candidacy in substantially the following form:" then follows the prescribed form. The said original act of March 23, 1917, did not require that such declarations be filed during regular office hours, however, by an act of the legislature, approved March 23, 1927, sec. 6 of said original act was amended and is now sec. 2409 N.C.L., and provides that all declarations of candidacy shall be filed "during regular office hours." The said act of March 23, 1917, requires that all declarations of candidacy for county offices be filed with the clerk not less than thirty days prior to the primary election and which is now known as subdivision (a) of said sec. 2408 N.C.L. has ever since remained in full force and effect, and the said Act of March 29, 1907, fixing the regular office hours of various county officers including county clerks, was amended March 27, 1929, and which is now known as said sec. 2045 N.C.L., and by said amendment county clerks are not required to keep their offices open on Saturdays from 1 o'clock p.m. to 5 o'clock p.m. for the transaction of public business. Counsel for respondent lay considerable stress upon the fact that the law which now fixes the regular office hours of the various county officers does not require respondent, as county clerk, to keep her office open on Saturday afternoons, and contend that Saturday afternoons were therefore not a part of the regular office hours, and that inasmuch as the statute (sec. 2409 N.C.L.) provides that all declarations of candidacy shall be filed during regular office hours, respondent therefore acted within her rights. However, the said amendment of 1929, after fixing the regular office hours, contains the following proviso: "* * * that nothing contained herein shall be construed so as to interfere with any duty now required of any public official under any of the election laws of this state." And since, at the time the said amendment of 1929 was enacted, it was then the duty of county clerks of this state to receive and file declarations of candidacy of any qualified elector, "not less than thirty days prior to the primary election," which included Saturdays from 9 o'clock a.m. to 12 o'clock noon and from 1 o'clock p.m. to 5 o'clock p.m., and this being a duty imposed upon county clerks by the primary election law at the time said amendment of 1929 was enacted, we are of the opinion that the above-quoted proviso continued that requirement of the law in full force and effect. We are of the opinion that the conclusion here reached is supported by the rule announced by this court in the case of State ex rel. Maxson v. Brodigan,37 Nev. 488, 143 P. 306, where this court held the well-settled rule to be "that penalties and forfeitures are not favored unless clearly expressed," and that a qualified elector should not be deprived of the right to have his name placed on the ballot "unless the statute clearly directs that such should be the result." [Page 307.] And in the instant case we find no statute which "clearly directs" that petitioner's name should be left off the ballot. To hold otherwise would, in effect, be holding the above-quoted proviso to be meaningless.

For the reasons given, it is hereby ordered that the order directing said peremptory writ of mandate to issue will stand as heretofore ordered.

DUCKER, J.;

I concur.