State Ex Rel. Cutting v. LaGrave

By the Court, Bigelow., 0. J.: The relator, as state superintendent of public instruction, applies for a writ of mandamus to compel the respondent, as state controller, to draw a warrant in his favor for the sum $200, salary due him for the month of November, 1895. He contends that he is entitled to a salary of $2,400 per year, while the respondent contends he is only entitled to $1,000. This contention constitutes the question to be decided in this proceeding. By Stats. 1891, 32, the legislature provided that after January 1, 1895, “ the superintendent of public instruction shall be ex officio clerk of the supreme court, ex officio state librarian, and ex officio curator of the state museum.” At the same session, in a general act fixing the salaries of state officials (Stats. 1891, 104), it was provided that after January 1, 1895, there should be paid “ to the superintendent of public instruction one thousand dollars, payable out of the general school fund; to the superintendent of public instruction, as ex officio clerk of the supreme court, ex officio state librarian, ex officio curator of the state museum, and secretary of the board of directors of the state orphans’ home, fourteen hundred dollars.” At the next session (Stats. 1893, 32) the act above referred to, making the superintendent ex officio clerk and ex officio librarian was repealed, and those positions were attached to the office of secretary of state, but nothing was said concerning the superintendent’s salary as ex officio curator or ex officio *124 secretary of the orphans’ home board, offices conferred upon him by other statutes. The office of superintendent and the various ex officio offices mentioned in these statutes are each a separate and distinct office, and their being vested in the same person does not change their nature in this respect. (State ex rel. Davenport v. Laughton, 19 Nev. 202; People v. Durick, 20 Cal. 94; Kinsey v. Kellogg, 65 Cal. 111.) It is very clear that the salary of $1,400, which, by the act of 1891, was to be paid to the superintendent, was the salary attached to all four of those ex officio offices, and constitutes the compensation for discharging the duties of all of them. It was to be paid in solido, and no particular sum was fixed as the salary of any one of them. This, of course, did not matter so long as all the offices were vested in one person, but now that that person is no longer clerk and librarian, it becomes highly important, for he certainly is not now entitled to the salary attached to those positions. The result is that the law fixing the salary has become inoperative. The superintendent is no more entitled to the whole salary, because of the two positions that he still holds, than is the secretary of state, because of the two now vested in him. But that, under the circumstances, no part of the salary can be paid to the secretary, was, in principle, decided in State ex rel. Gallup v. Hallock, 19 Nev. 371, and the same principle is applicable here. In fact that case is virtually decisive of this. There an appropriation had been made for the payment of the lieutenant-governor, as such, and as ex-officio librarian and adjutant-general, of which he had lost the two latter positions by failing to give an official bond, and they had become vested in another person. The court said: “The sum appropriated was set apart in solido for the payment of all the services to be rendered by that officer. Conditions have arisen which prevent the employment of the fund in this manner, and the appropriation has become inoperative.” In the case at bar, so far as the present question is concerned, it is the statute fixing the salary that has become inoperative, but the principle is the same. Kinsey v. Kellogg, 65 Cal. 111, is a case squarely in support of the conclusion announced here, and to the same effect is *125 San Luis Obispo County v. Darke, 76 Cal. 92. In the latter case the court said: “By the act of March 31, 1876, it was provided that the county clerk should receive a certain annual salary as his only compensation in all three capacities as county clerk, county auditor, and county recorder. After 1881, and while a different person was the incumbent of each of the three offices, the county clerk was entitled to receive no portion of the salary fixed by the law of 1876. The law became inoperative because it was intended to be operative only while the three offices were filled by one person.” The statute of 1891 fixing the relator’s salary having become inoperative, so far as the ex officio offices'are concerned, there is no statute fixing any salary for the offices of curator and secretary of the orphans’ home board, and without statutory authority for its payment, no compensation can be recovered by a public officer. (Mecham Pub. Off., sec. 856.) In the appropriation act of 1895 (Stats. 1895, 70) the legislature- appropriated the sum of $4,800 from the general school fund for the payment of the relator’s salary as superintendent and ex officio curator of the state museum for the fiscal years of 1895 and 1896, and the relator argues that this indicates the intention of that body that he should be paid a salary of $2,400 per year. It probably does indicate that the legislature of 1895 supposed his salary to be that amount, but if so, it was a misapprehension, and it does not follow from the appropriation that the law becomes what they then supposed it was. (Sutherland, Stat. Const., sec. 402; Van Norman v. Jackson, 45 Mich. 204; Davis v. Delpit, 25 Miss. 445; Byrd v. State, 57 Miss. 243.) In the latter case the court said (p. 247): “ An enactment of the legislature based on an evident misconception of what the law is will not have the effect, per se, of changing the law so as to make it accord with the misconception.” The purpose of the general appropriation act is to provide funds for carrying on the state government. The mere fact that money is appropriated for an officer’s salary, or for any other purpose, does not, of itself, make that money payable to any particular person. There must still be some authority of law to justify the controller in drawing a warrant for it, *126 or the treasurer in paying it out. (Gen. Stats. 1811.) If more is appropriated than is sufficient for the particular purpose designated, it is to be covered back into the general fund at the end of the fiscal years. (State ex rel. Wilkins v. Hallock, 20 Nev. 73.) If less, it does not repeal a former act fixing an officer’s salary, unless such clearly appears to have been the intention. (Mecham, Pub. Off., sec. 857; State v. Steele, 57 Tex. 200; State v. Cook, 57 Tex. 205.) It may be, and very likely is, that both the legislatures of 1893 and of 1895 supposed the superintendent’s salary was fixed at $2,400 per year, and that they intended him to have that salary, but, if such is the case, they did not manifest that intention in such a manner that it has become law, and consequently it cannot be taken notice of by officers or courts. ■ Application for the writ denied. Belknap, J.: I concur.