GEORGE E. McCRACKEN, Respondent, v. THE STATE OF NEVADA, Appellant
McCracken v. State
GEORGE E. McCRACKEN, Respondent, v. THE STATE OF NEVADA, Appellant.
[No. 2288]
GEORGE E. McCRACKEN, Respondent, v. THE STATE OF NEVADA, Appellant.
[167 Pac. 1001]
1. Schools and School Districts — Officers—Compensation.
Stats. 1911, c. 133, see. 13, provides that claims for traveling expenses of deputy superintendent of public instruction, etc., shall be paid from the general fund. Stats. 1915, c. 177, sec. 28, provides for the actual traveling and office expenses of deputy superintendent of public instruction, district No. 3, $1,750. Held, that the deputy superintendent of public instruction for such district could not recover under the first act cited for traveling expenses incurred during the year 1916; such act being superseded or suspended by the appropriation of the act of 1915.
2. Schools and School Districts — Officers — Compensation — • Appropriation — Statutes—Sufficiency.
Const, art. 4, sec. 19, provides: “No money shall be drawn from the treasury but in consequence of appropriations made by law.” Stats. 1915, e. 76, provides: “No warrant shall be drawn on the treasury, except there be an unexhausted specific appropriation, by law, to meet the same.” Held, that Stats. 1911. c. 133, sec. 13, was sufficient to make appropriation for claims arising under it, and that, as the legislature made no appropriation in 1917, respondent’s deputy superintendent of .public instruction .could recover under section 13 for expenses for the year 1917.
3. States — Appropriations—Sufficiency of Statute.
No particular form of words is necessary for the purpose of an appropriation, and an appropriation may be made in one year of the revenues to accrue in another or future year.
Appeal from the First Judicial District Court, Ormsby County; Frank P. Langan, Judge.
Suit by George E. McCracken against the State. From an order overruling its demurrer, and from a judgment for plaintiff for the amount sued for, the State appeals.
Judgment modified and affirmed.
Geo. B. Thatcher, Attorney-General, and Wm. McKnight, Deputy Attorney-General, for Appellant:
The demurrer should have been sustained, because there is no allegation of an unexhausted specific appropriation, and section 13 of the school law does not make an appropriation for the traveling and office expenses of deputy superintendents. The state controller is forbidden to draw any warrant on the treasury except there be an unexhausted specific appropriation by law to meet the same. (Stats. 1915, 94; State ex rel. Pyne v. LaGrave, 23 Nev. 27; State ex rel. Davis v. Eggers, 29 Nev. 469, 486.)
There is a vast difference between having money in the general fund, or in any other fund, and having an unex-hausted specific appropriation, "Fund” and "appropriation” are not synonymous terms; a distinction is of necessity made between them in the statutes. (Stats. 1915, 95; Marshall v. Dunn, 69 Cal. 223.)
However, it seems unnecessary to rely entirely upon this point, or upon the fact that no allegation is made, to indicate that the claims for the 1916 traveling expenses were allowed by the board of examiners during the year 1916 and previous to the time any unexpended balance in the appropriation had reverted. (Stats. 1915, 95; State ex rel. Wilkins v. Halleck, 20 Nev. 73, 74; State ex rel. Cutting v. LaGrave, 23 Nev. 120, 126; State ex rel. Fowler v. Eggers, 33 Nev. 535, 539); nor upon the fact that no allegation is made to indicate that the claims in question were presented to the state controller for his allowance (State v. Doron, 5 Nev. 399); nor upon any of the many other objections which might be raised, because of the fact that we believe section 13 does not make an appropriation for the payment of the traveling and office éxpenses of the deputy superintendents.
The main question now before the court is whether the language used in section 3251, Revised Laws, applicable to the present case, is sufficient, in and by itself, to constitute an appropriation' for the payment of the traveling and office expenses of the deputy superintendents. In every case where an appropriation is concerned it is a question of legislative intent, to be ascertained under settled rules of construction from the language used, the context, the necessities and purposes to be accomplished, in the light of contemporaneous circumstances. (Menefee v. Askew, 107 Pac. 159, 27 L. R. A. n. s. 537, 540; Shattuck v. Kincaid, 49 Pac. 758, 760.) The leading rule for the construction of statutes is to ascertain the intention of the legislature in enacting the statute; and the intent, when ascertained, will prevail over the literal sense. (State v. Ross, 20 Nev. 61.) It is always the first great object of the courts in interpreting statutes to place such construction upon them as will carry out the manifest purpose of the legislature, and this has been done in opposition to the very words of an act. (Gibson v. Mason, 5 Nev. 283, 311; Abel v. Eggers, 36 Nev. 372, 381.)
A. L. Haight and Mack & Green, for Respondent:
The general demurrer was properly overruled by the lower court, and its judgment should be affirmed. The only question involved is whether or not section 13 of "An act concerning public schools, and repealing'certain acts in relation thereto, ” approved March 20,1911 (Stats. 1911, 189, Rev. Laws, 3251), made an appropriation of moneys to be used as traveling expenses of deputy state superintendents. There are two assignments or specifications of error to the overruling of the demurrer, the first being that the court erred in finding that section .13 provided an appropriation for "traveling expenses, cost of transportation, and cost of living”; and, second, it is claimed that there is no allegation in the complaint that there was an unexhausted balance in the general fund of the state.
Inasmuch as the salary and expenses of the deputy school superintendents are payable from the "general fund,” a specific appropriation would be a fruitless and abortive proceeding, unless intended to increase or decrease the amounts provided for these purposes by section 13; and, again, section 13 specifically provides that traveling and other expenses of deputy superintendents shall be payable out of the "general fund,” but, if no fund were designated, the section would be deemed and construed as making an appropriation from the "general fund.” (State v. Eggers, 29 Nev. 475.)
The claim that the complaint does not allege an unexhausted fund out of which the claim may be paid is without merit. The court will presume that there were moneys in the "general fund” of the state, that being the fund out of which most all, if not all, appropriations are made. If there were no moneys in the " general fund” at the time the claim was presented to the state controller for his warrant, which was not a fact, it constituted a special and affirmative defense, which has not been pleaded. Moreover, the amended complaint expressly alleges "that there are sufficient moneys in the general fund of the treasury of the State of Nevada, not otherwise appropriated, to pay the same.” This is a clear and concise allegation of the existence in the "general fund” of sufficient moneys to pay the claim, and must be held sufficient, at least on general demurrer. The complaint also clearly alleges that the claim was presented to the state controller.
The real question to be determined, and which the court is here asked by respondent to decide, is whether or not section 13 of the act of 1911 provides an appropriation for the payment of traveling expenses, cost of transportation and cost of living of deputy superintendents. It is unnecessary to go to the decisions of the courts of other states, as we find that this court has rendered the clearest exposition of the law involved in the case at bar that we are able to find in the books. Every question required to be determined in this case is decided in the case of State ex rel. Davis v. Eggers, 29 Nev. 469. This case is certainly the law of the state, having been decided by a unanimous court, and having been cited with approval. (State ex rel. Fowler v. Eggers, 33 Nev. 535; State ex rel. Nor cross v. Eggers, 35 Nev. 250; State ex rel. Birdzell v. Jorgensen, 142 N. W. 457.)
By the Court,
Sanders, J.:
George E. McCracken brought his suit in the district court of the First judicial district of the State of Nevada, in and for the county of Ormsby, to recover from the defendant the sum of $417.78. His complaint, in substance, avers that the plaintiff was, and ever since September 15, 1915, has been, a duly appointed, qualified, and acting deputy superintendent of public instruction, in and for supervision district No. 3 of the State of Nevada; that during the year 1916, in his capacity as said official, it became necessary that he advance, for and on account of the defendant, certain sums as traveling expenses; that the total amount of money so advanced during said year was the sum of $658.85; that claims for advances so made during the said year on account of said expenses, amounting in all to the sum of $373.23, have been audited and paid; that claims for advances so made during the said year on account of said expenses, amounting to the sum of $285.62, were presented to the board of examiners, audited and allowed by said board, but the state controller refused, and still refuses, to draw warrants therefor on the treasurer; that plaintiff has not received payment of said claims, or any part thereof. For a second cause of action the complaint alleges that during the year 1917 the plaintiff advanced for and on account of the defendant, for his traveling expenses, the sum of $76.07. For a third cause of action the complaint alleges that the plaintiff advanced for and on account of defendant, for his office expenses during the year 1917, the sum of $56.09.
Each cause of action was amended, as stipulated, by the insertion of this clause:
"That an appropriation for the payment of the expenses above mentioned was made by the legislature of the State of Nevada under and by virtue of section 13 of an act entitled 'An act concerning public schools and repealing certain acts relating thereto,' approved March 20, 1911, and that there are sufficient moneys in the general fund of the treasury of the State of Nevada, not otherwise appropriated, to pay the same."
The defendant interposed a general demurrer to the amended complaint, and for demurrer alleged that the said amended complaint does not state facts sufficient to constitute a cause of action against this defendant, which was overruled by the district court. The defendant declined to- plead further, whereupon a default was entered, and judgment rendered for the amount sued for. From the order overruling the demurrer, and from the judgment, defendant has appealed.
In 1911 the legislature enacted a complete revision of the school laws. (Stats. 1911, p. 189.)
Section 13 of the act (Rev. Laws, 3251) in part provides:
"All claims for the traveling expenses, including the cost of transportation and the cost of living, of each deputy superintendent of public instruction while absent from their places of residence, together with necessary office expenses, shall be paid from the general fund of the state, whenever such claims shall be allowed by the state board of examiners; provided, that not more than eight hundred dollars shall be paid from the general fund of the. state in settlement of claims for such traveling expenses of any deputy superintendent of public instruction during any one year, and not more .than three hundred and fifty dollars shall be paid from the general fund of the state in settlement of claims for such office expenses of any deputy superintendent of public instruction for any one year."
Article 4, section 19, of the constitution provides:
"No money shall be drawn from the treasury but in consequence of appropriations made by law."
This inhibition is supplemented by section 3 of an act defining the duties of the state controller (Stats. 1866, p. 96; Stats. 1915, p. 94), which reads in part as follows:
"He shall draw all warrants upon the treasury for money, and each warrant shall express, in the body thereof, the particular fund out of which the same is to be paid, the appropriation under which the same is drawn, and the nature of the service to be paid, and no warrant shall be drawn on the treasury, except there be an unexhausted specific appropriation, by law, to meet the same."
It appears that the legislature, at its session in 1911 (Stats. 1911, p. 78), and at each subsequent session up to the session of 1917 (Stats. 1913, p. 183; Stats. 1915, p. 227), by what is styled "general appropriation acts," reduced the maximum sum as stated in section 13 of the school law for the payment of the traveling and office expenses of deputy superintendents of public instruction to $1,000 for traveling expenses, and to $650 for office expenses, for the period of two years — the life of each act. The act of 1915 was an act entitled:
"An act making appropriations for the support of the civil government of the State of Nevada for the years 1915-1916."
Section 1 of the act provided that:
"The following sums [of money] are hereby appropriated for the purpose hereinafter expressed, and for the support of the government of the State of Nevada for the years 1915-1916."
Section 28 of said act provided:
"For actual traveling expenses of deputy superintendent of public instruction, district No. 3, $1,000.00."
"For office expenses of deputy superintendent of public instruction, district No. 3, $650.00."
We have thus endeavored to point out the statute law bearing upon and involved in the proper solution of the issues of law raised by the demurrer.
Before discussing the principal objection made to the complaint, we shall, in limine, advert to the first cause of action, whereby the respondent demands judgment for his traveling expenses incurred and advanced during the year 1916 in the performance of his official duties. In the case at hand we concede that the facts studiously alleged in the first cause of action show a statutory right to recover under section 13 of the general school law of 1911; but in view of the general appropriation act of 1915, which specifically appropriated the maximum sum of $1,000 of the general fund for the express purpose of paying the respondent's traveling expenses for the years 1915-1916, we are impelled to take judicial notice that the facts stated in the first cause of action are not true. The act of 1915 was binding upon the parties for the period of its life — two years. The expenses for the year 1916 were incurred under it, limited by it, and the obligation of the state to pay was imposed by it. Just why respondent sought to recover under section 13 of the school law, which was manifestly superseded or suspended by the appropriation act of 1915, does not appear upon the face of the complaint. With nothing before us to support the facts alleged, other than the construction placed upon the statute by the pleader, we are impelled to hold that the first cause of action does not state facts sufficient to entitle the respondent to the relief demanded.
An entirely different question is presented by the respondent's second and third causes of action. This leads to a discussion of appellant's principal objection to the insufficiency of the facts stated in the complaint to constitute a cause of action. It is the contention of appellant that section 13 of the general school law of 1911 makes no appropriation for the payment of claims arising under it. We are not without judicial definition by our own court of what constitutes an appropriation in the sense of our constitution. The cases of State ex rel. Abel v. Eggers, 36 Nev. 372, 136 Pac. 100, State ex rel. Davis v. Eggers, 29 Nev. 469, 91 Pac. 819, 16 L. R. A. n. s. 630, and State v. La Grave, 23 Nev. 25, 41 Pac. 1075, 62 Am. St. Rep, 764, embrace a full and close discussion of the meaning of such an appropriation. We are impressed that the section in question was so framed as to conform to the definition of an appropriation, as declared by these cases. It specifically fixes the maximum amount set apart from the general fund for the payment of claims arising under it; it names the person; it designates the time; it specifies the fund, and prescribes the condition upon which warrants shall be drawn for the payment of said claims. We are of the opinion that the section, ex proprio vigore, makes an appropriation, and no further legislative act was required to give it force. The fact that the legislature, at the same session and at subsequent sessions, by general appropriation acts, fixed and set apart a lesser maximum sum from which to pay the traveling and office expenses of respondent, does not show or indicate that the legislature construed section 13 of the school law to be merely a limitation upon it and succeeding legislatures above which an appropriation could not be made for the purposes named. Such would be to construe the act as being an organic law, not subject to repeal, amendment, or suspension by the same or any other legislature. The appropriation made by the general law is no more indefinite and uncertain than the appropriation made by general appropriation acts, which are conceded to be valid. The amount appropriated in one is no more specific than in the other. The exact amount of the expenses could not be ascertained or fixed by the legislature under either before they were incurred.
No particular form of words is necessary for the purpose of an appropriation, if the intention to appropriate is manifest. (State v. La Grave, supra.) This case quotes with approval this language:
"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." (Ristine v. State, 20 Ind. 339.)
And in the case of State ex rel. Davis v. Eggers, supra, the court quotes with approval this language:
"It may also be a continuing or fixed appropriation, as well as one for a temporary purpose, or a limited period. The use of technical words in a statute making an appropriation is not necessary. There may be an appropriation of public moneys to a given purpose without in any manner designating the act as an appropriation." (Campbell v. Board, 115 Ind. 594, 18 N. E. 33.)
It is true the legislative branch of our state government has adopted the policy of making specific appro priations for carrying on the civil government by what is known as a general appropriation bill. These bills have by long usage come to be regarded by fiscal officers as speaking the will of the legislature, and therefore controlling upon them in the performance of their duties. But it appears the legislature of 1917 made no appropriation for the payment of respondent's traveling and office expenses during the years 1917-1918. From this failure or omission it is contended by the appellant that it was the intention of the legislature to repeal or suspend the appropriation made for these purposes by the general school law of 1911. This court has ruled adversely to this contention in the case of State ex rel. Abel v. Eggers, supra. The constitution does not provide that the public funds shall be annually applied under the direction of the legislature through general appropriation acts. Nor is it necessary that all expenditures for the carrying on' of the civil government be authorized by such acts. (State ex rel. Davis v. Eggers, supra.) Section 13 of the general school law now stands alone, unaffected by any appropriation bill or act, and as we are of the opinion that it constitutes an appropriation in the sense of our constitution for the payment of the traveling and office expenses of the respondent, we conclude that the respondent is entitled to judgment for the amount of said expenses sued for in his second and third causes of action. But as we are of the opinion, as hereinabove stated, that the facts alleged in respondent's first cause of action are not true, the judgment appealed from will be modified, by reducing the same to the sum of $132.16, and, as so modified, the judgment is affirmed.
It is so ordered.