Grant and McNamee v. Payne , 60 Nev. 250 ( 1940 )

The election held on November 5, 1940, was in my opinion, a general election within the meaning of the proviso in sec. 12, art. IV of the state constitution, as amended in 1922. Appointment by the county commissioners is to be made only in cases where no general election takes place between the occurrence of the vacancy and the next succeeding session of the legislature. Senator Horsey resigned July 29, 1940. Thus the general election of November 5, 1940, took place between the occurrence of the vacancy and the next session of the legislature.

To hold that "general election," as used in the proviso, means the election at which state senators are ordinarily elected, is to read into the proviso what the people did not put there. Amended sec. 12 of art. IV of the constitution relates to the filling of vacancies. It does not undertake to change either the time or manner of the regular and ordinary election of assemblymen or senators. In my opinion the names of Archie C. Grant and Frank McNamee should have been placed on the ballot for the general election of November 5, 1940, so that the voters of Clark County could choose one of them to fill the vacancy occasioned by Senator Horsey's resignation. The successful candidate would not have been elected for an ensuing four-year term, but only to fill the vacancy and serve until the general election of 1942.

Consider the effect of holding that "general election," in the amended constitutional section, means the election at which state senators are ordinarily elected. Let us say that a candidate for the office of state senator from Clark County is regularly elected at the general election of 1938. A vacancy later occurs, (1) in December 1938; or (2) after the legislative session of 1939 and before the general election in 1940; or (3) after said 1940 election and before the 1941 session of the legislature; or (4) after the 1941 legislative session and before the general election in November 1942. In every one of these situations except (4) the vacancy would, according to the prevaling opinion, be filled by appointment. The only election would be the general election of 1942, and that, it seems to me, would not be one to fill a vacancy, but rather one to regularly elect a senator for the ensuing four-year term.

I think we should adopt a construction which gives effect to the intent and purpose of the framers of the section of the constitution under consideration, and of the people who adopted it. 16 C.J.S., Constitutional Law, p. 51, sec. 16, n. 39; 11 Am.Jur. 674, sec. 61, n. 18; State v. McNeill, 127 Wash. 157,219 P. 852.

Respondent takes the position that even if the election of November 5, 1940, was a "general election" within the meaning of the proviso, the writ should nevertheless be denied because the said amended section of the constitution has not been followed up by special legislation providing for elections to fill vacancies in the office of state senator. It seems to me, however, that the constitutional provision itself (sec. 12 of art. IV), together with our statutes governing elections, provide a complete machinery for the filling of such a vacancy at a general election taking place between the occurrence of the vacancy and the next succeeding session of the legislature. State v. McNeill, supra.

As I read sec. 12, art. IV of the constitution of Nevada, as applied to the instant case, it means that where any general election takes place between the time of a vacancy in the office of state senator and the next succeeding session of the legislature, the vacancy shall be filled by election at such general election. It is said that such a construction amounts to judicial legislation, but is it any more so than to say that "general election," as used in the proviso, and as applied to this case, means general election at which state senators are ordinarily elected? If anything is to be read into the proviso, it would seem better that it be something which will carry out the intent of those who adopted the constitutional provision. Implication plays a very important role in constitutional construction, and the intent of a constitutional provision may be shown by implications as well as by express words. 11 Am. Jur. 666, sec. 56; 16 C.J.S., Constitutional Law, p. 54, sec. 16, n. 43.

In the instant case, the time for filing declarations of candidacy had not expired when the vacancy occurred, and petitioners filed their declarations within the time limited by statute. All that was then required was the placing of petitioners' names on the ballot for the general election of 1940. In such a situation, it would seem useless and unreasonable to require special legislation for an election to fill the vacancy.

It may be further observed that if the election of November 5, 1940, was a "general election" within the meaning of the proviso, then, even if it be conceded, for purposes of discussion, that special legislation would be necessary for an election to fill the vacancy and that such legislation has not been enacted, there would still be no legal authority for filling the vacancy through appointment by the county commissioners, because the provision for appointment by them "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." If, therefore, the November 1940 election was a "general election" within the meaning of the proviso, the vacancy could not in any event be filled through appointment by the county commissioners. This consideration tends to confirm the view that the true intent of amended sec. 12 of art. IV was that, in such a case as this, the vacancy should have been filled by the voters of Clark County at the general election on November 5, 1940.

Entertaining these views, the writ, in my opinion, should have been made peremptory.