Cleveland H. Baker, Attorney-General, and James R. Judge, Deputy Attorney-General, for Relator.
James T. Boyd, amicus curiae.
This is an action in mandamus instituted by relator, George T. Mills, as chairman of the state board of fish commissioners, seeking to compel William McMillan, as state treasurer of the State of Nevada, to pay a warrant for the sum of $1,755.36 issued by the state controller on the general fund of the state, and to further compel the state treasurer to transfer from the fund designated and known as the New State Prison Building Fund the money therein contained, amounting to the sum of $73,945.80, into the general fund of the state treasury, so that there will be money in the general fund out of which said claim of relator can be paid. From the petition it appears that the governor of the State of Nevada, pursuant to an act of the legislature approved March 16, 1905 (Stats. 1905, c. 156), appointed a fish commission of which the relator is chairman; that, pursuant to the said act of the legislature, it was made the duty of the said fish commission, when appointed, to at once construct upon state property at Verdi, Nevada, suitable buildings for a fish hatchery, etc., and for this purpose the legislature appropriated out of the general fund of the state the sum of $8,000, to be expended under the direction of said fish commission; that, pursuant to said act of the legislature, said fish commission contracted among other debts for the construction of said buildings at Verdi, Nevada, a debt in the amount of $1,755.36, which was regularly allowed by the fish commission and approved by the board of examiners, for which amount the warrant in controversy was regularly drawn on the general fund of the state treasury; that the state treasurer refused to pay said warrant of the state controller out of said fund for the amount designated, notwithstanding there was an unexpended balance in said appropriation of March 10, 1911, of the sum of $7,235.73; and that the said state treasurer refused to pay said warrant because there was no money whatever left in the general fund, and indorsed on said warrant, which he refused to pay, Not paid for want of funds. The petitioner further relates
that on the date of the presentation of said warrant for payment to the state treasurer, there remained in said state treasury in a fund designated on the books of the said state controller and state treasurer as the New State Prison Building Fund, in current money of the government of the United States of America, an unexpended balance of $73,945.80, which said sum of money has been lying idle in said fund for more than seventeen months last past, and the state paying interest thereon for said money.
It further appears in said petition that a meeting of the state board of prison commissioners of the State of Nevada was held on the 28th day of August, 1911, said meeting being called for the purpose of considering the advisability of authorizing and directing the state treasurer of the State of Nevada to transfer said sum of $73,945.80 from the new state prison building fund into the general fund in the state treasury; that at said meeting by a majority vote of said board, it being so deemed advisable and necessary, said board of state prison commissioners did direct and authorize the transfer of said sum of $73,945.80 from said new state prison building fund into the general fund; and that upon the same day the state board of examiners at a meeting duly called and held at the office of said board in the capitol building, in Carson City, Nevada, after considering the action taken by the said board of state prison commissioners with reference to authorizing and directing the transfer of said sum from the new state prison building fund to the general fund, said board of examiners did then and there, by a majority vote of said board by resolution, approve of and ratify the action taken by said board of state prison commissioners in transferring said sum of $73, 945.80 from the said new state prison building fund into the general fund in the state treasury. The petitioner further relates that the respondent, the state treasurer, refused to make said transfer of said $73,945.80 from the new state prison building fund into the general fund in the state treasury, as by said board of state prison commissioners and board
of examiners authorized and directed to do, and for that reason the general fund is without money to meet the payment of the warrant of said relator for the sum of $1,755.36, which is a valid claim against the state, and which has been regularly approved and allowed, and was regularly presented to and refused payment by the said state treasurer. The respondent appeared at the hearing, and admitted all the facts alleged in the petition, and the only question presented is one of law as to whether there is or should be sufficient money in the general fund of the state treasury to pay the claim in question.
Two questions of law are presented by relator's petition: First, as to whether the sum of $73,945.80, now standing upon the books of the state treasurer and state controller in a fund designated New State Prison Building Fund, was ever placed in said fund by authority of law; and, second, if so legally placed in said fund, whether the same has been transferred from the said new state prison building fund to the general fund by resolution adopted by the state board of prison commissioners and the state board of examiners. It has been contended by the attorney-general in the argument upon the proceeding that the said sum of $73,945.80 has at all times been, and is now, a part of the general fund, and that the action of the state controller and state treasurer in placing such money in the said fund designated New State Prison Building Fund, was without authority of law and their actions to that extent void, and, further, if their action was not void, then the said moneys in said special fund have been transferred by the resolutions of the board of prison commissioners and board of examiners. If the first contention of the attorney-general is correct, it will be unnecessary to consider the question as to whether power existed in the board of prison commissioners and board of examiners to make a transfer of said funds. Upon the hearing of the proceedings, James T. Boyd, Esq., appeared upon behalf of the Nevada Engineering Works, a corporation, claiming to have a contract with the state board of prison commissioners for supplying a certain
number of steel cells for the new state prison, and he was permitted to make an argument in opposition to the granting of the writ prayed for. It was the contention of Mr. Boyd that the money now standing upon the books of the state controller and state treasurer in the fund designated New State Prison Building Fund was a special fund dedicated by the state legislature for the sole purpose of paying claims for expenses in the construction and furnishing a new state prison under acts of the legislature hereafter mentioned, and that there was no authority of law by which any board or officer could transfer said money into the general fund.
Preliminary to a consideration of the statutes controlling the questions submitted, it may be stated as a general proposition of law that all moneys coming into the state treasury constitute a part of the general fund, unless by the provisions of the constitution or some statutory enactment they are placed in some special fund. It follows, therefore, that the money in question, to wit, $73,945.80, belongs in the general fund, unless there is some provision of law specifically authorizing its placement in a special fund. The only provisions of law affecting the question involved are statutory and found in two certain acts of the legislature of the session of 1909.
By an act approved March 20, 1909, entitled An act authorizing and requiring the state board of prison commissioners, under certain conditions, to acquire a site and premises for a state prison, fixing its locality, defining its nature, area, certain appurtenances and general character, and, upon the approval by said board of plans, specifications, and detailed drawings of the state engineer therefor, who is made the architect and superintendent thereof, to erect and construct upon said site and premises, wholly or in part, by contract or otherwise, said state prison, prescribing certain duties for the said board and the state engineer under this act, and declaring said ...