State Ex Rel. Cutting v. Westerfield , 24 Nev. 29 ( 1897 )

The facts sufficiently appear in the opinion. The relator applies to the court for writ of mandamus; to compel the respondent, as state treasurer, to pay a certain warrant drawn in his favor by the state controller, for $83 33 as his salary for the month of January, 1897.

In 1881 the act of the legislature fixing the salary of the superintendent, made it payable out of the general school fund. In 1891 the legislature reduced his salary, but made it payable out of said fund. Every appropriation made by the legislature for payment of his salary from 1883 to 1897, inclusive, has been made payable out of the said fund, and his salary has been so paid up to the beginning of this year, when the state treasurer refused to pay said warrant. Counsel for respondent moves the court to quash and set aside relator's application upon the ground substantially: that the appropriation act, in so far as it appropriates moneys out of the general school fund to pay said salary, is in direct violation of art. XI, sec. 3, of the constitution of Nevada, and is null and void. And they say: "If the act of 1897 is not contrary to article eleven, section three of the constitution of the state, respondent has no defense to the action; if it is, the application for the writ prayed for by relator should be dismissed."

As to these latter propositions we concur with the counsel. The argument of counsel then, with reference to the duties of the state controller and state treasurer, relating to the general school fund, based on the provisions of the statutes, other than the appropriation act of 1897, is foreign to the question submitted to the court, as these provisions of the statutes in no manner determine or affect the constitutional power of the legislature to provide for the payment of relator's salary out of said school fund. Besides, if the act of 1897, in appropriating money out of that fund to pay said salary, is constitutional, we find no legal barrier against such payment being made. Under the same provisions of the several statutes cited, the respondent for the years 1895 and 1896, and his predecessors in office for the twelve years next preceding, paid the superintendent's salary out of the general school fund.

In the case of The State, ex rel. Keith, v.Westerfield, lately decided by this court, the question involved was as to the constitutionality of an appropriation made for the salary of a teacher of the state orphans' home, which was made payable out of the general school fund. In that case, we held, in effect, that, under the authority of State, ex rel. Greenbaum, v.Rhodes, 4 Nev. 312, the legislature was prohibited from applying the interest derived from the state school fund to any other branch of state expenditure, except that immediately connected with the educational system.

We held that, in contemplation of the constitution, the school at the orphans' home is not a part of our educational system, and that under the authority of State, ex rel.Wright, v. Dovey, 19 Nev. 396, the children at the orphans' home were not entitled to any of said interest or moneys arising from the special tax required to be levied by section 6 of article XI for the purposes of the university and common schools. But there is a material difference between that case and the case at bar.

In article XI of the constitution, which provides for the common school system, the office of the superintendent is created. It was created solely for the benefit of the common schools. The superintendent is their chief officer, his official duties are directly connected with them and the state's expenditures with reference to his office are immediately connected with the common school system.

Counsel for respondent argue that, as said section 3 provides that the interest received from the investment in bonds of what is called the state school fund shall be distributed among the several counties for the benefit of the common schools, it prohibits any part of it from being applied to relator's salary. The attorney-general, on the part of the relator, contends that, "even though that portion of the general school fund derived from interest be subject to the restrictions placed upon it by section 3 of article XI of the constitution, that it ``shall from time to time be apportioned among the several counties, as the legislature may provide by law,' there is no such restriction or rule laid down to be followed by the legislature as to the portion of the money in said fund derived from taxation." We fully agree with the attorney-general on this point.

Article XI of the constitution requires the legislature to 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 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 the state university and common schools. It will be observed that it is optional with the legislature whether it shall provide funds to establish and maintain a school in each district for a greater period than six months in every year or not. And the legislature has the option of levying a special tax of a fractional part of a mill on the dollar, up to two mills on the dollar, or twenty cents on the hundred dollars of all taxable property.

The legislature of 1897, like those preceding it, provided that of the ad valorem tax levied on each one hundred dollars of taxable property for state purposes, five cents shall go into the general school fund, and it was provided by the general appropriation bill, as it had been provided by every other appropriation bill for the last fourteen years, that the salary of the superintendent shall be paid out of that fund. The moneys that go into this fund from said source amount to over ten thousand dollars per year.

If it were necessary to distribute all of this school money derived from taxation, among the several counties to support the common schools, for the length of time required by the constitution, six months in every year, there might be some force in the contention on the part of the respondent. But such necessity does not appear, and it is not claimed to exist. Then whether the relator's salary shall be paid out of this fund, or from some other source is simply a question of policy on the part of the legislature, with which the courts have nothing to do, and over which they have no control.

Practically, it does not make a farthing's difference to the taxpayers, whether relator's salary is paid out of this fund, or the general fund in the state treasury.

The constitution leaves it entirely to the discretion of the legislature, whether it shall put five cents of the proceeds of said ad valorem tax into the general school fund for common school purposes, or a lesser sum or a greater sum, provided the greater sum does not exceed twenty cents on the hundred dollars of taxable property. And it is likewise left to its discretion as to what part of the moneys that it puts into said fund, shall be distributed among the said counties, and as to what part shall be otherwise used for the benefit of these schools, for purposes and uses immediately connected with the common school system.

If anything was needed to support our views of the constitutionality of the appropriation in question beyond the terms of the constitution, it may be found in the following facts: In 1881 the legislature, by an act reducing and fixing the salaries of the state officers, by its terms made the salary of the superintendent payable out of the general school fund, which act took effect on the first Monday of January, 1883. The legislature of 1883 made an appropriation for this salary out of said fund, and likewise at every session thereafter. In 1885 an amendment was proposed and passed, to section 6 of article XI, which simply changed the section by making two mills on the dollar the maximum limit of the special tax levy, instead of one-half of a mill, as it was in the original section. In 1887 the amendment was agreed to and passed, and, at a special election in 1889, it was ratified by the people. In view of the fact, that long prior to the proposal and adoption of said amendment by the legislature and its ratification by the people, the salary of the superintendent was made payable out of the general school fund by the said act of 1881, and by subsequent appropriation bills, we may reasonably conclude that such payment is within the contemplation of the constitution, that it was intended to be sanctioned and ratified by the amendment; otherwise it would have been restricted by the amendment.

Indeed, it may be reasonably inferred that the provisions of the legislature making the salary of the superintendent of public instruction payable out of the general school fund was among the reasons of raising the maximum rate of said tax to two mills on the dollar.

A statute will always be sustained by the courts if there be any reasonable doubt of its unconstitutionality. This rule is so well settled that authorities need not be cited. But it clearly appears to us, that the constitution does not restrain the legislature from appropriating moneys out of the general school fund to pay relator's salary.

The motion of respondent to dismiss this application is denied. The writ prayed by the relator will issue.