McCracken v. State

• Decision Date: 05 October 1917
• Docket Number: 2288.
• Citation: 167 P. 1001,41 Nev. 49
• Parties: MCCRACKEN v. STATE.
• Court: Nevada Supreme Court

167 P. 1001

41 Nev. 49

MCCRACKEN v. STATE.

No. 2288.

Supreme Court of Nevada

October 5, 1917

Appeal from District Court, Ormsby County; Frank P. Langan, Judge.

Suit by George E. McCracken against the State. From an order overruling its demurrer, and from a judgment for plaintiff for the amount sued for, the State appeals. Judgment modified and affirmed.

McCarran C.J., dissenting.

Geo. B Thatcher, Atty. Gen., and Wm. McKnight, Deputy Atty. Gen for the State.

A. L Haight, of Fallon (Mack & Green, of Reno, of counsel), for respondent.

SANDERS J.

George E. McCracken brought his suit in the district court of the First judicial district of the state of Nevada, in and for the county of Ormsby, to recover from the defendant the sum of $417.78. His complaint, in substance, avers that the plaintiff was, and ever since September 15, 1915, has been, a duly appointed, qualified, and acting deputy superintendent of public instruction, in and for supervision district No. 3 of the state of Nevada; that during the year 1916, in his capacity as said official, it became necessary that he advance, for and on account of the defendant, certain sums as traveling expenses; that the total amount of money so advanced during said year was the sum of $658.85; that claims for advances so made during the said year on account of said expenses, amounting in all to the sum of $373.23, have been audited and paid; that claims for advances so made during the said year on account of said expenses, amounting to the sum of $285.62, were presented to the board of examiners, audited and allowed by said board, but the state controller refused, and still refuses, to draw warrants therefor on the treasurer; that plaintiff has not received payment of said claims, or any part thereof. For a second cause of action the complaint alleges that during the year 1917 the plaintiff advanced for and on account of the defendant, for his traveling expenses, the sum of $76.07. For a third cause of action the complaint alleges that the plaintiff advanced for and on account of defendant, for his office expenses during the year 1917, the sum of $56.09.

Each cause of action was amended, as stipulated, by the insertion of this clause:

"That an appropriation for the payment of the expenses above mentioned was made by the Legislature of the state of Nevada under and by virtue of section 13 of an act entitled 'An act concerning public schools and repealing certain acts relating thereto,' approved March 20, 1911, and that there are sufficient moneys in the general fund of the treasury of the state of Nevada, not otherwise appropriated, to pay the same."

The defendant interposed a general demurrer to the amended complaint, and for demurrer alleged that the said amended complaint does not state facts sufficient to constitute a cause of action against this defendant, which was overruled by the district court. The defendant declined to plead further, whereupon a default was entered, and judgment rendered for the amount sued for. From the order overruling the demurrer, and from the judgment, defendant has appealed.

In 1911 the Legislature enacted a complete revision of the school laws. Stats. 1911, p. 189. Section 13 of the act (section 3251, Rev. Laws) in part provides:

"All claims for the traveling expenses, including the cost of transportation and the cost of living, of each deputy superintendent of public instruction while absent from their places of residence, together with necessary office expenses, shall be paid from the general fund of the state, whenever such claims shall be allowed by the state board of examiners: Provided, that not more than eight hundred dollars shall be paid from the general fund of the state in settlement of claims for such traveling expenses of any deputy superintendent of public instruction during any one year, and not more than three hundred and fifty dollars shall be paid from the general fund of the state in settlement of claims for such office expenses of any deputy superintendent of public instruction for any one year."

Article 4, section 19, of the Constitution provides:

"No money shall be drawn from the treasury but in consequence of appropriations made by law." This inhibition is supplemented by section 3 of an act defining the duties of the state controller (Stats. 1866, p. 96; Stats. 1915, p. 94), which reads in part as follows:

"He shall draw all warrants upon the treasury for money, and each warrant shall express, in the body thereof, the particular fund out of which the same is to be paid, the appropriation under which the same is drawn, and the nature of the service to be paid, and no warrant shall be drawn on the treasury, except there be an unexhausted specific appropriation, by law, to meet the same."

It appears that the Legislature, at its session in 1911 (Stats. 1911, p. 78), and at each subsequent session up to the session of 1917 (Stats. 1913, p. 183; Stats. 1915, p. 227), by what is styled "general appropriation acts," reduced the maximum sum as stated in section 13 of the school law for the payment of the traveling and office expenses of deputy superintendents of public instruction to $1,000 for traveling expenses, and to $650 for office expenses, for the period of two years--the life of each act. The act of 1915 was an act entitled:

"An act making appropriations for the support of the civil government of the state of Nevada for the years 1915-1916."

Section 1 of the act provided that:

"The following sums [of money] are hereby appropriated for the purpose hereinafter expressed, and for the support of the government of the state of Nevada for the years 1915-1916."

Section 28 of said act provided:

"For actual traveling expenses of deputy superintendent of public instruction, district No. 3, $1,000.00."

"For office expenses of deputy superintendent of public instruction, district No. 3, $650.00."

We have thus endeavored to point out the statute law bearing upon and involved in the proper solution of the issues of law raised by the demurrer.

Before discussing the principal objection made to the complaint, we shall, in limine, advert to the first cause of action, whereby the respondent demands judgment for his traveling expenses incurred and advanced during the year 1916 in the performance of his official duties. In the case at hand we concede that the facts studiously alleged in the first cause of action show a statutory right to recover under section 13 of the general school law of 1911; but in view of the general appropriation act of 1915, which specifically appropriated the maximum sum of $1,000 of the general fund for the express purpose of paying the respondent's traveling expenses for the years 1915-1916, we are impelled to take judicial notice that the facts stated in the first cause of action are not true. The act of 1915 was binding upon the parties for the period of its life--two years. The expenses for the year 1916 were incurred under it, limited by it, and the obligation of the state to pay was imposed by it. Just why respondent sought to recover under section 13 of the school law, which was manifestly superseded or suspended by the appropriation act of 1915, does not appear upon the face of the complaint. With nothing before us to support the facts alleged, other than the construction placed upon the statute by the pleader, we are impelled to hold that the first cause of action does not state facts sufficient to entitle the respondent to the relief demanded.

An entirely different question is presented by respondent's second and third causes of action. This leads to a discussion of appellant's principal objection to the insufficiency of the facts stated in the complaint to constitute a cause of action. It is the contention of appellant that section 13 of the general school law of 1911 makes no appropriation for the payment of claims arising under it. We are not without judicial definition by our own court of what constitutes an appropriation in the sense of our Constitution. The cases of State ex rel. Abel v. Eggers, 36 Nev. 372, 136 P 100, State ex rel. Davis v. Eggers, 29 Nev. 469, 91 P. 819, 16 L. R. A. (N. S.) 630, and State v. La Grave, 23 Nev. 25, 41 P. 1075, 62 Am. St. Rep. 764, embrace a full and close discussion of the meaning of such an appropriation. We are impressed that the section in question was so framed as to conform to the definition of an appropriation, as declared by these cases. It specifically fixes the maximum amount set apart from the general fund for the payment of claims arising under it; it names the person; it designates the time; it specifies the fund, and prescribes the condition upon which warrants shall be drawn for the payment of said claims. We are of the opinion that the section, ex proprio vigore, makes an appropriation, and no further legislative act was required to give it force. The fact that the Legislature, at the same session and at subsequent sessions, by general appropriation acts, fixed and set apart a lesser maximum sum from which to pay the traveling and office expenses of respondent, does not show or indicate that the Legislature construed section 13 of the school law to be merely a limitation upon it and succeeding Legislatures above which an appropriation could not be made for the purposes named. Such would be to construe the act as being an organic law, not subject to repeal, amendment, or suspension by the same or any other Legislature. The appropriation made by the general law is no more indefinite and uncertain than the appropriation made by general appropriation acts, which are conceded to be valid. The amount appropriated in one is no more specific than in the other. The exact amount of the expenses could not be...