Winters v. Ramsey

MORGAN, C. J. (After Stating the Facts.) — This raises the question as to whether it is necessary to have an examination of said division of said state wagon road by the reviewers appointed by the governor, and a favorable report from them, before the state auditor is authorized to issue the warrant in final payment for said work. It is perhaps sufficient to say upon this subject that both the plaintiffs and the state wagon road commissioners, being both parties to the contract for the construction of said road, have expressly stipulated in said 306 contract that the said plaintiffs shall receive final payment when they have executed their contract to the satisfaction, approval, and acceptance of said wagon road commissioners and the board of examiners appointed to finally inspect, approve, and accept said division of said road. We find nothing in the statutes or constitution of the state forbidding the insertion of such a clause in the contract; and, as the plaintiffs themselves have joined the state wagon road commissioners in making the approval of the board of examiners a condition precedent to receiving final payment, we must hold them to a compliance therewith. A reasonable time and opportunity must be allowed the board of examiners, called in the statute the “examining board,” to make this final examination and report thereon. This examination has not yet been made, and, on account of the lateness of the season, they have had no opportunity to make such examination. We think this provision in the contract was wise, as it furnishes an additional safeguard to the state. It is also contended by the defendant that this claim must be submitted for examination to the board of examiners, consisting of the governor, Secretary of State, and attorney general, Section 18, article 4 of the constitution provides that “the governer, Secretary, of State and attorney general shall constitute .... a board of examiners, with power to examine all claims against the state, except salaries and compensation of officers fixed by law, .... and perform such other duties as may be prescribed by law.” This clause of the constitution is supplemented by thé statute (1st Sess. Laws, p. 46, sec. 3), as follows: “It shall be the duty of the board [state board of examiners] to examine all claims against the state, except salaries and compensations of officers fixed by law.....The board may approve or disapprove any claim or demand against the state, or any item thereof, or may recommend a less amount in payment of the whole, and a decision of a majority of the members shall stand as the decision of the board. “Section 4 provides that if the auditor shall draw his warrant for any 307 claim or part of a claim or item thereof, which is disapproved by the board, he shall be liable.upon his official bond for the same if any loss shall accrue to the state therefrom. These sections of the constitution and the statute require all claims against the state of an unliquidated character shall he submitted to this board for approval or rejection before the auditor shall draw his warrant therefor. This claim is of the class that must be submitted to this board, and approved by it, before the auditor can draw a warrant in payment thereof. This position of the court is upheld in the case of State v. Hallock, 20 Nev. 326, 22 Pac. 123, in which this precise clause in the constitution of Nevada is passed upon by the court, and wherein the same position is taken by the court. These conditions precedent not having been complied with, the motion to quash the alternative writ is allowed, and the petition dismissed. Sullivan and Huston, JJ., concur.