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State v. Harmon

December 31, 1914

STATE OF NEVADA, EX REL. RICHARD BUSTEED, RELATOR, V. HARLEY A. HARMON, AS COUNTY CLERK OF CLARK COUNTY, RESPONDENT.


Alfred Chartz, for Petitioner.

Geo. B. Thatcher, Attorney-General, and E. T. Patrick, Deputy Attorney-General, for Respondent.

By the Court, McCarran, J.:

This is an original proceeding in prohibition. Petitioner seeks to prohibit the county clerk of Clark County from placing upon the official election ballot the name of H. W. Harkins as the nominee of the Republican party for the office of justice of the peace of Las Vegas township. The allegations of the petition are not denied. It is there declared that the original nominee of the Republican party for the office of justice of the peace of Las Vegas township died on the 16th day of September last, and that the

[38 Nev. 5, Page 6]

Republican county central committee, assuming to act under the provisions of the statute of 1913, filled by appointment the vacancy thereby created. The statute in that respect provides:

A vacancy “occurring after the holding of any primary election shall be filled by the party committee of the city, county, city and county, district or state, as the case may be.” (Stats. 1913, p. 525.)

[1] At the meeting of the Republican county central committee of Clark County, one Roy W. Martin was present, acting as chairman and taking part in the deliberations of the body, and holding and exercising three proxies. It is contended that the acts of the committee in filling the vacancy with the name of Harkins was void, in that by the provisions of our statute of 1913 the said Martin was prohibited from being a member of the county central committee, inasmuch as he was the holder of an appointive public office, to wit, health officer of the county of Clark. Section 18 of chapter 282, Stats. 1913, provides: “no holder of a public position other than an office filled by the voters shall be a delegate to a convention for the election district that elects the officer or board under whom he directly or indirectly holds such position, nor shall be a member of a political committee for such district.” (Stats. 1913, p. 482.)

Without passing on the question as to whether the position held by Martin was one such as is contemplated by the inhibition of section 18, it is sufficient to say that the right of Martin to hold the place on the county committee cannot be attacked in this indirect proceeding in which he is not made a party. The acts of Martin, in so far as they went in voting to fill a vacancy on the Republican ticket, were at least those of a member de facto of that committee. In the case of Walcott v. Wells, 21 Nev. 47, 24 Pac. 367, 9 L. R. A. 59, 37 Am. St. Rep. 478, this court adopted a comprehensive definition of a de facto officer, that is:

“One whose acts, though not those of a lawful officer,

[38 Nev. 5, Page 7]

the law, upon principles of policy and justice, will hold valid so far as they involve the interests of the public and third persons, where the duties of the office were exercised:

“(1) Without a known appointment or election, but under such circumstances of reputation or acquiescence as were calculated to induce people, without inquiry, to submit to or invoke his action, supposing him to be the officer he assumed to be.

“(2) Under color of a known and valid appointment or election, but where the officer had failed to conform to some requirement or condition, as to take an oath, give a bond, or the like.

“(3) Under color of a known election or appointment, void because the officer was not eligible, or because there was a want of power in the electing or appointing body, or by reason of some defect or irregularity in its exercise; such ...


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