State v. Eggers

• Decision Date: 05 October 1907
• Docket Number: 1,728.
• Citation: 91 P. 819,29 Nev. 469
• Parties: STATE ex rel. DAVIS v. EGGERS, State Controller.
• Court: Nevada Supreme Court

91 P. 819

29 Nev. 469

STATE ex rel. DAVIS v. EGGERS, State Controller.

No. 1,728.

Supreme Court of Nevada

October 5, 1907

Petition for mandamus by the state of Nevada, on relation of Sam P Davis, against J. Eggers, state controller. On demurrer to the petition. Overruled. Writ granted.

Thompson Morehouse & Thompson, and Jas. R. Judge, for plaintiff.

The Attorney General and R. C. Stoddard, for defendant.

TALBOT C.J.

Under an act approved March 29, 1907, entitled "An act creating and establishing a state industrial and publicity commission, prescribing their duties and compensation providing funds to be used for the accomplishment of their objects, and other matters relating thereto" (Laws 1907 p. 408, c. 185), the petitioner was appointed chairman of the commission designated. Section 3 (page 409) of the act is as follows: "The chairman of such commission shall receive, as compensation for his services, to be paid out of the treasury of the state of Nevada, the sum of twenty-five hundred dollars per annum, payable in equal monthly installments, upon the first day of each and every month, and the other two members shall serve without compensation; provided, however, that the chairman and other members of such commission shall be allowed necessary mileage and actual expenses of travel incurred in traveling upon the official business of the commission when it shall appear from the affidavit of the members, or one of the members claiming the same, that such mileage and expenses were actually and necessarily incurred, that the same is just, and was incurred while traveling upon the official business of the commission; such affidavit to be filed with the State Treasurer before any allowance can be made for such mileage or expenses." As the questions involved have been submitted upon a demurrer, the facts stated in the petition may be considered admitted. The petitioner alleges that he entered upon his duties on the 1st day of May, 1907, and acted as chairman of this commission during that month; that by the provisions of the act he is entitled to receive out of the state treasury a salary of $2,500 per annum, to be paid monthly; that he is also entitled to receive and be paid out of the state treasury mileage and expenses actually incurred while traveling upon official business of the commission; that his compensation fixed and allowed by the act for the month of May, 1907, is the sum of $208.33, and his mileage and expenses necessarily and actually incurred in the performance of his official duty for that month amount to $16.50, for both of which sums the state became indebted to him on the 1st day of June; that the provisions of the act make appropriation by the Legislature for these sums in accordance with the provisions of section 19, art. 4, of the Constitution of this state; that these claims had been duly audited and allowed by the state board of examiners; that upon presentation and demand the respondent, as state controller, has refused, and still refuses, to draw his warrants for these claims, notwithstanding there is ample money in the state treasury. A writ of mandate requiring the issuance of such warrants is demanded. The general appropriation bill contains no provision for the payment of the salary or expenses of the petitioner. It may have been drawn previous to the act designated, which was introduced near the close of the session of the Legislature. The question involved is whether the language of section 3 quoted above constitutes an appropriation for the payment of petitioner's salary and expenses, and whether their payment is by this act, or otherwise, authorized.

Section 19 of article 4 of the Constitution provides: "No money shall be drawn from the treasury but in consequence of appropriations made by law." A similar provision is found in the federal Constitution and prevails in many of the states. In the organic acts of others the word "specific" precedes and modifies the word "appropriations." We will be aided by looking to the history, purpose, and reason for these constitutional enactments before examining decisions of a number of courts bearing on the proposition presented. As the fruit of the English revolution in 1688, which sent the king to Versailles and changed the succession to the throne, this safeguard had its origin in the British Parliament when the people of Great Britain, to provide against the abuse by the king and his officers of the discretionary power with which they were vested, demanded that the public funds should not be drawn from the treasury except in accordance with express appropriation made by Parliament. This prohibition is so wise that it has become the fundamental law of nearly every state in the Union. It has been well said that this provision was obviously inserted to prevent the expenditure of the people's treasure without their consent. State v. Burdick, 4 Wyo. 272, 33 P. 125, 24 L. R. A. 266. Its purpose is "to secure regularity, punctuality, and fidelity in the disbursements of the public money." 3 Story's Commentaries, § 1342. "All the expenses of the government being paid by the people, it is the right of the people, not only not to be taxed without their own consent, or that of their representatives freely chosen, but also be actually consulted upon the disposing of the money. Such a provision forms a salutary check, not only upon the extravagance and profusion in which the executive department might indulge itself, but also against any misappropriation which a rapacious, ambitious, or otherwise unfaithful executive might be disposed to make. In those governments where the people are taxed by the executive no such check can be interposed. The prince levies whatever sum he thinks proper and would deem it sedition against him and his government if any account were required of him and in what manner he had disposed of any part of them. Such is the difference between government where there is responsibility and where there is none." Tucker's Commentaries; Thomas v. Owens, 4 Md. 225. This inhibition for keeping the expenditure of the public moneys more nearly in control of the people may be compared with the one requiring all bills for revenue in Parliament to originate in the House of Commons, and in Congress in the House of Representatives. Under our advanced, protective system, no officer or individual has control of the public moneys. The provision that no moneys shall be drawn from the treasury but in consequence of appropriations made by law requires that their expenditure shall first be authorized by the Legislature, which stands as the representative of the people. No particular words are essential so long as the will of the lawmaking body is apparent. It has been held in a number of decisions that the word "appropriate" is not indispensable. It is not necessary that all expenditures be authorized by the general appropriation bill. The language in any act which shows that the Legislature intended to authorize the expenditure, and which fixes the amount and indicates the fund, is sufficient. It is customary to create a legislative fund at the beginning of the session, and separate acts appropriating money are usual at every session.

It is provided by an act approved March 8, 1879 (Laws 1879, p. 108, c. 102), entitled "An act authorizing the payment of salaries of officers fixed by law":

Section 1: "All state officers whose salaries are fixed by law shall be entitled, from and after the passage of this act, to receive same on the first of each calendar month; provided, that nothing in this act shall be construed to mean the payment of salaries in advance." Comp. Laws, § 2088.

Section 2: "The controller is hereby authorized and directed to draw his warrant, and the state Treasurer to pay same, in accordance with the first section of this act." Comp. Laws, § 2089.

By an examination of numerous acts providing for the compensation of our state officers, it will be found that generally no fund is specified for the payment of their salaries.

By an act approved January 16, 1865 (Laws 1864-65, p. 97, c. 11), directly after the admission of Nevada into the Union, entitled "An act in relation to the compensation of members of the Legislature and state officers," per diem and mileage were provided for members of the Legislature in section 1.

Section 2 reads: "The Governor shall receive an annual compensation of four thousand dollars; the Secretary of State, Treasurer, and controller, an annual compensation of three thousand six hundred dollars each; the Attorney General, an annual compensation of two thousand five hundred dollars; *** The compensation of the respective state officers, as provided herein, shall be payable quarterly.

"Sec. 3. The controller is hereby authorized and required to draw his warrants upon the state Treasurer, in favor of the members of the Senate and Assembly, upon presentation of certificates of compensation due, signed by the sergeants-at-arms and the presiding officers of the two houses respectively, for the amounts named therein. He shall, on the first judicial day of the months of January, April, July, and October, draw his warrants in favor of the several state officers for the quarterly compensation due them by virtue of the provisions of section two of this act."

The act nowhere mentions any fund from which the salaries were to be paid.

The act approved March 3, 1866 (Laws 1866, p. 205, c. 104), changed the compensation of the Governor and of the Lieutenant Governor, and provided that the salary of the latter should be $3,000, payable monthly, as compensation as warden of the state prison. No fund was specified.

"An act regulating and reducing the salaries and compensation of certain state officers and attaches of ...