State v. Eggers

• Decision Date: 04 January 1913
• Docket Number: 2,053.
• Citation: 128 P. 986,35 Nev. 250
• Parties: STATE EX REL. NORCROSS, COMMISSIONER OF INDUSTRY, v. EGGERS, CONTROLLER.
• Court: Nevada Supreme Court

128 P. 986

35 Nev. 250

STATE EX REL. NORCROSS, COMMISSIONER OF INDUSTRY, v. EGGERS, CONTROLLER.

No. 2,053.

Supreme Court of Nevada

January 4, 1913

Original proceeding for mandamus by the State, on the relation of C A. Norcross, as Commissioner of Industry, against J. Eggers as Controller of the State. Writ granted.

Summerfield & Richards, of Reno, for relator.

George B. Thatcher, Atty. Gen., and E. T. Patrick, Deputy Atty Gen., of Carson City, for respondent.

SWEENEY C.J.

Relator as the commissioner of industry, agriculture, and irrigation for the state of Nevada, has instituted the foregoing proceeding against respondent, J. Eggers, as state controller of the state of Nevada, for the purpose of requiring respondent to issue and to deliver to the Carson Valley Bank as respondent's assignee two warrants upon the state treasurer of the state of Nevada, payable out of the general fund in the Nevada state treasury, for the sum of $300 each in course of payment of relator's salary for the months of October and November, 1912.

It is relator's contention that, under the provisions of law, his salary is payable out of the state general fund, in which there is sufficient funds otherwise unappropriated to pay the same, while it is respondent's contention that relator's salary is payable only out of the appropriation made in the legislative act creating relator's office, and that, said appropriation being exhausted, there is no fund in the state treasury against which respondent can legally draw the demanded warrants for relator's salary. It is stipulated between counsel that there are no disputed evidentiary facts, and the sole question for us to determine is whether relator's salary is legally payable out of the state general fund. If the court answers this question in the affirmative, the mandate asked should issue, but otherwise it should be denied.

The act in question is entitled "An act creating and establishing a Nevada bureau of industry, agriculture and irrigation, providing for a commission in charge thereof creating the office of commissioner of industry, agriculture and irrigation and fixing his compensation; defining the objects and purposes of said bureau; prescribing the powers and duties of said commission; appropriating funds for its support and maintenance and to carry out its objects and purposes, and other matters relating thereto." Approved March 17, 1911. Rev. Laws, §§ 4486-4494. Section 1 of the above-entitled act in part provides: "That there is hereby created and established a Nevada bureau of industry, agriculture and irrigation. Said bureau shall be governed and controlled by a commission which shall be designated as state commission of industry, agriculture and irrigation, and shall be composed of five members, four of whom shall be ex officio members, namely: The governor, the surveyor general, the attorney general, and the state engineer, and one other member to be appointed by the governor, the office of which is hereby created, who shall be entitled commissioner of industry, agriculture and irrigation. * * *" Section 2 provides when the term of office of the commissioner shall begin, and that he shall hold office at the pleasure of the governor. Section 3 provides for meetings of the commission, and that "no expenditure shall be made or expense contracted without it be authorized by a majority vote at such meeting," etc. Section 4 specifically defines the "general and special powers, duties and functions of said commission," which are set forth in six subdivisions, and includes the gathering and disseminating of information relative to the resources of the state, the conducting of "reasonable and practicable explorations and experiments to determine the feasibility of reclaiming favorable portions of the state, the control of the selection, management and disposal of all lands granted the state under the provisions of the act of Congress * * * known as the Carey Act," and other matters of a kindred nature. Section 5 provides that the commission may accept certain contributions which shall go into a special fund in the state treasury "called industrial commission fund," and that boards of county commissioners may, in their discretion, make appropriations from the county treasuries "to meet in part the cost or expense of any exploration or experimental work conducted in such county." Section 6 provides: "Said commissioner shall receive a salary of three thousand six hundred dollars per annum, payable in equal monthly installments by the state treasurer on warrants drawn by the state controller. The members of said commission when engaged in field work or delegated to special duty shall be entitled to actual traveling, living and other necessary expenses, which shall be audited by the commission and on the certificate of the commissioner, approved by the state board of examiners, shall be paid by the state treasurer on warrants of the state controller, out of any moneys in...