State v. La Grave

• Decision Date: 16 October 1895
• Docket Number: 1,445.
• Citation: 41 P. 1075,23 Nev. 25
• Parties: STATE ex rel. PYNE v. LA GRAVE, State Comptroller.
• Court: Nevada Supreme Court

41 P. 1075

23 Nev. 25

STATE ex rel. PYNE v. LA GRAVE, State Comptroller.

No. 1,445.

Supreme Court of Nevada

October 16, 1895

Original application for mandamus, on the relation of George D. Pyne against C. A. La Grave, state comptroller, requiring him to draw his warrant in favor of relator, as secretary of Company B, first regiment, Nevada National Guard, for the rent of an armory for the company. Writ denied.

J Poujade, for relator. Atty. Gen. Robt.

M Beatty, for respondent.

BELKNAP J.

A former application for mandamus was dismissed upon the ground of insufficiency of the petition. 22 Nev.--, 41 P. 115. The application has been renewed upon a corrected statement. The question now is whether an appropriation of the public funds has been made. It is claimed that it is made by section 11 of the act of 1895, as follows: "Sec. 11. It shall be the duty of the board of county commissioners of any county in which public arms, accouterments, or military stores are now had or shall hereafter be received for the use of any volunteer organized militia company to provide a suitable and safe armory for organized militia companies within said county. All claims for the expense of procuring and maintaining armories shall be audited and approved by the board of military auditors, and upon approval of such claims they shall be presented to the state controller who shall draw his warrant upon the state treasury for the amount so approved, and upon presentation of said warrant, the state treasurer shall pay the same out of the general fund. Such expenses shall not exceed seventy-five ($75) dollars per month for any company except that each company regularly drilling with field pieces or machine guns, and using horses therewith, may be allowed an additional sum not to exceed twelve and 50/100 ($12.50) dollars per month for each piece or gun." St. 1895, p. 109. It is said that fixing the maximum amount to be paid each company, and directing the comptroller to draw his warrant for the amount, and the treasurer to pay it, constitutes an appropriation. These matters alone do not accomplish that end. To constitute an appropriation, there must be money placed in the fund applicable to the designated purpose. The word "appropriate" means to allot, assign, set apart, or apply to a particular use or purpose. An appropriation in the sense of the constitution means the setting apart a portion of the public funds for a public purpose. No particular form of words is necessary for the purpose if the intention to appropriate is plainly manifested. In Ristine v State, 20 Ind. 339, the court said: "An appropriation of money to a specific object would be an authority to the proper officer to pay the money, because the auditor is authorized to draw his warrant upon an appropriation, and the treasurer is authorized to pay such amount, if he has appropriated money in the treasury. And such an appropriation may be prospective,--that is, it may be made in one year of the revenues to accrue in another or future years,--the law being so framed as to address itself to such future revenues." In McCauley v. Brooks, 16 Cal. 28, the court said: "To an appropriation, within the meaning of the constitution, nothing more is requisite than a designation of the amount and the fund out of which it shall be paid." The authorities to which we are referred do not support the relator's contention. Except the case of Reynolds v. Taylor, 43 Ala. 420, all are cases in which an appropriation of money had been expressly made in terms. In Reynolds v. Taylor it was said that, if the salary of a public officer is fixed, and the time of payment prescribed by law, no special annual appropriation is necessary. Under existing facts it is improbable that the provisions of the statute were intended as an appropriation, because the number of military companies that could have received its benefits was indefinite and uncertain. These facts are: The law permits one company in each of the fourteen counties of the state, and excepts from this provision companies...