State ex rel. Shaughnessy v. Boyle ( 1920 )

By the Court,

Ducker, J.:

By this proceeding John F. Shaughnessy, Wm. H. Simmons, and James G. Scrugham, members of and constituting the Public Service Commission of the State of Nevada, seek a peremptory writ of mandamus to compel Emmet D. Boyle, governor, and George Brodigan, secretary of state, as members of the State Board of Examiners of the State of Nevada, to allow and approve certain claims presented to said board of examiners to be paid out of specific funds alleged to have been appropriated for such, purpose by sections 23 and 24 of an act of the legislature of the State of Nevada (Stats. 1919, c. 81), entitled “An act making-appropriations for the support of the civil government of the State of Nevada for the years 1919 and 1920,” approved March 22, 1919. The writ is also sought to compel George A. Cole, as state controller of the State of Nevada, to draw his warrants upon the state treasurer of the State of Nevada for the.payment of said claims from said specified funds, and to direct Ed Malley, as state treasurer of the State of Nevada, to pay said warrants therefrom.

The claims which give rise to this controversy are the claims of F. 0. Broili in the sum of $100 for services as engineer for the public service commission during the months of April and May, 1919, and the claim of the commission for and on behalf of the National Association of Railway Commissions for $500 for the year 1919 and $500 for the year 1920. These claims were duly approved by the commission, and presented to the state board of examiners, and as alleged in the petition were rejected by said board by the votes of the governor and the secretary of state, solely on the ground that there was no appropriation therefor. It is also alleged in the petition that the only member of said board who voted to allow the claims is Leonard B. Fowler, attorney-general of the State of Nevada, and that prior to the presentation of the claim of said Broili -to the board said Leonard B. Fowler at the request of the commission rendered an opinion, holding that the appropriation is valid, and that said claim should be paid from' the money so appropriated; that the opinion of the attorney-general has been repudiated and rejected by the governor and the secretary of state as members of the board, and by George A. Cole, state controller of the State of Nevada; and it is alleged that the latter will decline to draw warrants in payment of said claims from the specific sums said to have been appropriated.

The defendants filed an answer to the petition, and a summary thereof is to the effect that by the enactment of that certain act of the legislature of the State of Nevada (Stats. 1919, c. 109), entitled “An act defining public utilities, providing for the regulation thereof, creating a,public service commission, defining its duties and powers, and. other matters relating thereto,” approved March 28, 1919, and effective' April 1, 1919, said sections 23 and 24 of the general appropriation act have ceased to be of force since last-mentioned date, and are inoperative, and that no claims can be allowed from, nor any warrants be drawn upon, said alleged appropriations.

It is admitted in the answer that said Boyle, Brodigan, and Cole have declined to accept the opinion of the attorney-general, but denied that either of these members of the board voted to reject the claims.

The regular presentation and validity of the claims are not denied in the answer, and it is alleged that said Emmet D. Boyle and George Brodigan, as members of the state board of examiners, have been at all times, and now are, ready and willing to approve the same, and to authorize their payment out' of the fund of $10,000 appropriated by section 46 of the said act .of March 28, 1919; and that said George A. Cole, as state controller of the State of Nevada, has at all times been, and now is, ready and willing to draw his warrants in payment of said claims upon the appropriation authorized by the statute last mentioned.

This is not a proper case for the issuance of the . extraordinary writ of mandamus. Section 46 of said act of March 28, 1919, provides as follows:

“For the purpose of carrying out the provisions of this act, the sum of ten thousand ($10,000) dollars is hereby appropriated out of any moneys in the treasury not otherwise appropriated.”

The contention is nowhere made that this fund is not available for the payment of the claims, or that it does not constitute an appropriation out of which the claims might be legally paid. But it is claimed by the commission that there are specific appropriations created by item 3 of section 23 and item 1 of section 24 of the general appropriation act of 1919, which should be drawn upon for their payment. The act carrying these items of appropriation was passed March 22,1919, and defendants contend that they were repealed by the act of March 28, 1919. We may assume, for the purposes of this decision merely, that no such repeal was effected by the latter act, and still the writ may not issue. For, if the items mentioned in said sections 23 and 24 constitute valid subsisting appropriations available for the payment of the claims, there is then, by reason of the additional appropriation made by said section 46, more than one. fund out of which they may be paid; and the right of the board of examiners to allow and approve the claims, as payable out of either, would involve an exercise of discretion which could not be controlled by mandamus.

The peremptory writ prayed for is denied, the alternative writ heretofore issued quashed; and the proceedings dismissed.