State v. Westerfield

• Decision Date: 18 June 1897
• Docket Number: 1,501.
• Citation: 49 P. 119,23 Nev. 468
• Parties: STATE ex rel. KEITH v. WESTERFIELD, State Treasurer.
• Court: Nevada Supreme Court

49 P. 119

23 Nev. 468

STATE ex rel. KEITH v. WESTERFIELD, State Treasurer.

No. 1,501.

Supreme Court of Nevada

June 18, 1897

Original application by the state, on the relation of Florence M Keith, for a writ of mandamus to compel W. J. Westerfield state treasurer, to pay a warrant in relator's favor drawn by the state controller.

J. Poujade and Geo. W. Keith, for relator.

J. R. Judge, Atty. Gen., William Woodburn, and A. J. McGowan, for respondent.

BONNIFIELD J.

The relator brings this action to compel, by writ of mandamus the respondent, as state treasurer, to pay a certain warrant drawn in her favor by the state controller for the sum of $45, in payment of her salary for the month of April last, as assistant teacher at the state orphans' home. The warrant was drawn on or made payable out of the general school fund, pursuant to the terms of the act making an appropriation for the payment of the salaries of the teachers at said home, passed at the last session of the legislature. St. 1897, p. 82. The question of the constitutionality of said appropriation is raised by the pleadings. The contention of counsel for respondent is, in effect, that the moneys belonging to the general school fund, in contemplation of the constitution, can be used only for the support of the common schools and the state university, and not for any purposes of the state orphans' home. Counsel for relator argues to the effect that, as the constitution pledges these moneys for educational purposes for the benefit of all the children of the state, the appropriation of a due proportion of it for the payment of the teachers at the state orphans' home is permissible under the terms of the constitution; that such use of it is applying it to educational purposes; and that no child can be properly deprived of the benefits of said moneys by reason of its being placed in said home; and that the educational department of said home may properly be considered a part of the common school system. As we view the terms of the constitution and the former decisions of this court, we do not think the above contention is tenable on the part of the relator. Sections 2 to 6 of article 11 of the constitution provides "that the legislature shall provide for a uniform system of common schools, by which a school shall be established and maintained in each school district at least six months in every year"; that the proceeds derived from certain designated sources "shall be, and the same are hereby, solemnly pledged for educational purposes, and shall not be transferred to any other fund for other uses, and shall be, from time to time, apportioned among the counties"; that the legislature shall provide for the investment of all proceeds derived from any of said sources in certain kinds of bonds; "that the interest only of the aforesaid proceeds shall be used for educational purposes, and any surplus interest shall be added to the principal sum: provided, that such portion of said interest as may be necessary may be appropriated for the support of the state university"; that the legislature shall provide for the establishment of a state university, which shall embrace departments for agriculture, mechanical arts, and mining; that the legislature shall have power to establish normal schools and such different grades of schools, from the primary department to the university, as, in their discretion, they may deem necessary; and that the legislature shall provide a special tax, which shall not exceed two mills on the dollar of all taxable property in the state, in addition to the other means provided for the support and maintenance of said university and common schools. The educational system of this state consists of the above-named departments of education, and the above provisions are made for the support of this system or these departments. In State v. Rhoades, 4 Nev. 312, the court held "that section 3 of article 11 of the constitution prohibits the legislature from using the funds arising from the sale of the public lands, which were granted for educational purposes, for any other branch of state expenditure, except that immediately connected with the educational system, but (that) it does not prohibit the use of a part of the trust estate for the purpose of making the rest available." The above construction of said section 3, that the legislature is prohibited from using the funds arising from the sale of lands which were granted for educational purposes for any other branch of state expenditures, except that immediately connected with the educational system, except, etc., is applicable to all moneys arising from the proceeds from the several sources named in said section, whether it be principal or interest, as all such moneys or funds are, by the same terms, included in the prohibition. In State v. Dovey, 19 Nev. 396, 12 P. 910, the court held: "In the apportionment of the school fund as required by the constitution (article 11, § 3), the wards of the state at the orphans' home should not be counted as a part of the...