State ex rel. Norcross v. Eggers , 35 Nev. 250 ( 1912 )

By the Court,

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 the 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 are 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 státe 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 the treasury available therefor. ”

Section 7 provides: "There is hereby appropriated to carryout the purposes of this act, the sum of $25,000, and all disbursements from which, as well as from the said industrial commission fund, shall be on certificates of the commissioner, approved by the state board of examiners, when the state controller shall draw his warrant and the state treasurer pay the same. ” ,

Section 8 provides for certain printing, and section 9 contains certain penal provisions.

It is the contention of respondent that the salary of the commissioner is payable out of the $25,000 appropriated under the provisions of section 7 above quoted, while relator contends that that fund is specifically appropriated "to carry out the purposes of the act,” as those purposes are set forth and defined in section 4 of the act. By a reference to the title of the act, it appears that the act, in addition to creating the office of commissioner and fixing his compensation, makes appropriation of "funds for its (Nevada bureau of industry, agriculture and irrigation) support and maintenance and to carry out its objects and purposes.” ■ It must be borne in mind throughout the interpretation of this act that the commissioner and the bureau are not one and the same. The bureau is governed by a commission of five members, one of whom is the commissioner, "who shall keep his office in said bureau.” (Section 3.)

[1] If section 7 did not appear in the act then unquestionably section 6, which fixes the salary 'of the commissioner and directs that the same be payable “in equal monthly installments by the state treasurer on warrants drawn by the controller,” would be a sufficient appropriation out of the general fund under the rule heretofore laid down by decisions of this court. (State v. Eggers, 29 Nev. 469, 16 L. R. A., N. S., 630; State v. Westerfield, 23 Nev. 473.)

[2] There is no specific provision in section 7 that the salary of the commissioner shall be paid out of the $25,000 therein appropriated, but there is a provision that “all disbursements from which * * * shall be on certificates of the commissioner, approved by the state board of examiners.” If, then, the commissioner’s salary is payable out of this fund, then the commissioner must first certify to his salary, and submit the same to the board of examiners, and have the latter board approve the same before the controller may draw his warrant. But section 6 says the “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.” This latter section fixes the method of payment direct, independent of any certificate or approval of the board of examiners. The salary of the commissioner is a fixed charge against the state. There is no reason why the commissioner should certify to the same, and there is nothing for the board of examiners to audit and allow. The board of examiners have nothing to do with salaries of officers. Section 21 of article 5 of the constitution creates the board of examiners, “with powers to examine all claims against the state (except salaries or compensation of officers fixed by law).” (Rev. Laws, 314.) Such board, therefore, can have no power to examine, approve or disapprove fixed salaries of officers. Such claims as have been by law authorized, “but of which the amount has not been liquidated and fixed, may be presented to the board of examiners,” is the language of the statute regulating the duties of the board of examiners. (Rev. Laws, 4459.) This is in accord with the constitution. It is not to be presumed that the legislature intended to require the board of examiners to approve a fixed claim for salary, when the constitution expressly takes that class of claims out of the consideration of such board. Since section 7 provides that all payments from the $25,000 must be approved by the board of examiners, the only logical deduction is that disbursements from that fund must all be of the character which the board of examiners are authorized and required to approve. As they are not authorized or required to approve the salary of the commissioner, it follows that such salary was not intended to have been paid out of such appropriation. There is nothing in the language of section 7 which indicates an intent on the part of the legislature that the appropriation of $25,000 should include the salary of the commissioner, while as before pointed out, there is language used manifesting a contrary intent. The word “purposes” indicates something to be accomplished rather than an existing fact. See Webster, Words and Phrases. The purposes of the act are defined therein. The creation of the bureau and the office of commissioner were accomplished the moment the act went into effect. They were but means for the subsequent accomplishment of the purposes of the act. If the legislature had intended that the $25,000 appropriated by section 7 should include salaries, instead of using language negativing such intent, it would have used language manifesting such intent, as it did in the case of the act in relation to banks and banking and creating the office of state bank examiner and fixing his salary, which act was passed at the same session of the legislature. Section 78 of the latter act (Rev. Laws, 693) provides: “For the purpose of carrying this act into effect and paying the salaries and expenses herein provided for and incident thereto, the sum of twenty thousand dollars is hereby appropriated out of the state treasury.”

In reviewing the entire act under consideration and in the light of the law and authorities submitted, we are of the opinion that relator is entitled to his salary from the general fund. Let the writ issue as prayed for.