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1- Official Opinions of the Attorney General OFFICIAL OPINIONS OF THE ATTORNEY GENERAL - 1956 OPINION NO. 56-186 CONSTITUTIONAL LAW; ELECTIONS—Proviso in Section 3, Article XV of Nevada Constitution rendered inoperative by women’s suffrage amendment to Section 1, Article II. Carson City, July 11, 1956 Honorable Dwight F. Dilts, Assistant Superintendent of Public Instruction, Carson City, Nevada. Dear Mr. Dilts: In your letter of June 28, 1956, you ask the following question: Will you please advise whether this office is correct in assuming that we have the following residence requirements for candidates for the office of school trustee: For males—six months in the State and thirty days in the county. For females—one year in the State and six months in the county. OPINION The answer is in the negative. Sec. 3, Art. XV of the Nevada Constitution provides as follows: Sec. 3. No person shall be eligible to any office who is not a qualified elector under this constitution. No person who, while a citizen of this state, has, since the adoption of this constitution, fought a duel with a deadly weapon, sent or accepted a challenge to fight a duel with a deadly weapon, either within or beyond the boundaries of this state, or who has acted as second, or knowingly conveyed a challenge, or aided or assisted in any manner in fighting a duel, shall be allowed to hold any office of honor, profit or trust; or enjoy the right of suffrage under this constitution. The legislature shall provide by law for giving force and effect to the foregoing provisions of this section; provided, that females over the age of twenty-one years, who have resided in this state one year, and in the county and district six months next preceding any election to fill either of said offices, or the making of such appointment, shall be eligible to the office of superintendent of public instruction, deputy superintendent of public instruction, school trustee, and notary public. (Italics added.) This section provides initially that qualified electorship is the essential requisite to the right to hold office. Thus, if one is entitled to vote he is, if otherwise qualified, entitled to hold office. Sec. 1, Art. II of the Nevada Constitution sets forth the essential qualifications of an elector. One of these qualifications is a required residence of six months in the State together with thirty days in the district or county. According to this article (Article II), any person, otherwise qualified, having six months residence in the State and thirty days residence in the district or county is a qualified elector entitled to vote. Then, according to the first sentence of Sec. 3, Art. XV, above -1- quoted, it would follow that any person with the requisite six months and thirty days residence, being otherwise qualified, is an elector and qualified to hold any office. However, the proviso of the above quoted section as italicized provides that women, who are otherwise qualified, having a residence of one year in the State and six months in the county and district are eligible to the offices of superintendent of public instruction, deputy thereof, school trustee, and notary public. This appears to require a longer residence requirement in the case of women for eligibility to those particular offices. In other words, if the proviso is viewed in this light, a certain restriction by way of an added eligibility requirement is placed upon the women as distinguished from the men. We will first treat this proviso in Sec. 3, Art. XV as though it was in fact intended, when added to the Constitution, to place such restriction or added requirement upon the women. Now, this proviso in Sec. 3, Art. XV was added to this section of the State Constitution by the people in 1912. In 1914 the people amended the suffrage section, Sec. 1, Art. II, making the women qualified electors. In 1920 the people of the United States added Amendment XIX to the Federal Constitution which provides as follows: The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any state on account of sex. Congress shall have power to enforce this article by appropriate legislation. Under a constitutional or statutory provision which does nothing more than require that a person be an elector in order to be eligible to hold office, it appears settled that the amendments to the State and Federal Constitutions permitting women the right to vote expanded those provisions to also make women eligible to hold office. In Re Opinion of the Justices, 240 Mass. 601, 135 N.E. 173; Parus v. District Court, 42 Nev. 229, 174 P. 706; Neal v. Delaware, 103 U.S. 370, 26 L.Ed. 567; 71 A.L.R. 1333. However, it is to be noted that the principle of these cases extends only to the proposition that the granting of suffrage also carries with it the right to hold office when the only prerequisite to hold office is that of the right to vote or electorship. An entirely different result could follow in a case wherein there is an express restriction in the law bearing upon eligibility to hold office. In the Opinion of the Justices, cited above, the court said, “if there were express prohibition in the constitution against the eligibility of women for office, a quite different question would arise.” The reason for this is, as stated by the same court, that the right to hold office is not necessarily coextensive with the right to vote. See also 71 A.L.R. 1333. It follows, therefore, that because the State has granted women’s suffrage and the Federal Constitution has prohibited the denial of their suffrage, it is not to say that express prohibitions of restrictive qualifications in the law were by those amendments made inoperative. -2- It may be concluded, therefore, that if the proviso in Art. XV, Sec. 3 of the Nevada Constitution was intended for the purpose of placing an added requirement upon the women in order that they be eligible to hold the particular offices named therein, such would be the mandate of the law unaltered by the women’s suffrage amendments to the State and Federal Constitutions. This brings us to what this office considers the true construction to be placed upon the proviso in Art. XV, Sec. 3 of the State Constitution. We consider it absolutely necessary to view this proviso in light of the period of time during which it was added to the Constitution and the positive development of that period toward the modern concept of the women’s place in governmental affairs. It is to be observed that this proviso was added to the State Constitution in 1912. Prior to that time women were not eligible to hold public office for the reason that the Constitution had provided that only qualified electors were eligible, and at that time women were not electors. The proviso added in 1912 making women eligible for certain offices was, therefore, an obvious expansion or extension of the women’s privilege. It could not have been placed as a restriction on the eligibility of women to hold office because there was prior thereto nothing to restrict. In 1914 the people of the State amended Sec. 1, Art. II of the State Constitution qualifying women as electors. From 1914 on, the general restriction upon women to hold office, that of the lack of electorship, was eliminated. It is with the advent in 1914 of women’s suffrage, expressed in Art. II that the proviso in Art. XV takes on the appearance of a restriction rather than an expansion of the women’s rights. It would most certainly be a strained construction of the State Constitution to say that the people, by their approval of the amendment to Art. II in 1914 providing women’s suffrage, intended, by leaving unchanged the proviso in Art. XV, to automatically change that which was originally an expansion of women’s rights to become a restriction thereon. In light of the trend of the period toward modern concepts of women’s privileges, such a strained construction would make neither good sense nor comport with the established rules of constitutional or statutory construction. See in this connection 16 C.J.S. 81 “Constitutional Law” Sec. 19, and the cases cited therein. One of the cardinal principles in constitutional interpretation is that there is no justification for any construction whatsoever of clear and unambiguous language, but where doubt and ambiguity exists, construction should comport with the intention of its framers. See 16 C.J.S. 72 “Constitutional Law” Secs. 16, 19 and cases cited therein. Because of the possible interpretation of the proviso in Art. XV pointing to a restriction of women’s rights and leading to the absurdity that women, to become eligible for any other office in the State, if otherwise qualified, need have only the six months and thirty days residence -3- requirement, but for eligibility to hold the office of school trustee there must be an added residence requirement, we feel there is good cause for construction of the proviso. With this in mind, we are also of the opinion that it was not the intention of the framers of this proviso in question to change that which was initially an expansion of women’s rights to become a restriction by reason of the inclusion of the women’s suffrage provision. We are rather of the opinion that the people by the adoption of the women’s suffrage provisions in Art.
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