James D. Finch and George Springmeyer, for Petitioner.
Geo. B. Thatcher, Attorney-General, for Respondent.
By the Court, Talbot, C. J.:
The relator asks for a peremptory writ of mandate, requiring the state controller to draw his warrants for $6,900, alleged to be due and unpaid as salary of the relator as secretary of the State Industrial and Publicity Commission from August 1, 1907, to the 1st day of June, 1911, when the act of March 29, 1907 (Stats. 1907, c. 185), creating that commission, became repealed by an act of the legislature of March 17, 1911 (Stats. 1911, c. 74). It is not shown that during this period of nearly four years he took any action to enforce the payment of his salary.
Section 4, under which the relator seeks to recover such salary from the state, is as follows: Said commission may appoint a secretary at a salary of not more than $1,800 per annum, and may employ such other experts as may be necessary to perform any services it may require of them, and shall fix their compensation, payable out of such contributions as may be made by the various counties and by private individuals.
Under the amended demurrer it is contended on behalf of respondent, by brief and argument, that this court has no jurisdiction of the subject-matter, that the petitioner has not alleged that there is any appropriation for the payment of the salary, nor that the claim was ever presented to the board of examiners, that the petitioner's salary was not fixed by law, and consequently that mandamus is not the proper remedy. It is not alleged or claimed that the respondent has in his possession any contributions from counties or private individuals, and the questions arise whether relator's salary is fixed by law, and whether it is made payable as an appropriation out of the state treasury.
Section 21 of article 5 of the constitution provides that the governor, the secretary of state, and the attorney-general shall constitute a board of examiners to allow claims against the state, except salaries and compensation of officers fixed by law.
Section 5653, Revised Laws, provides: An officer or person who has presented a claim against the state for services or advances authorized by law, and for which an appropriation has been made, but of which the amount has not been fixed by law, to the board of examiners, which claim said board or the state controller has refused to audit and allow, in whole or in part, may commence an action in any court in Ormsby County having jurisdiction of the amount, for the recovery of such portion of the claim as shall have been rejected.
Section 5655 provides: Upon the presentation of a certified copy of a final judgment in favor of the claimant in any such action, the controller shall draw his
warrant in favor of the claimant for the amount awarded by the judgment.
1, 2. Where the law especially enjoins a duty upon an officer, and leaves him no discretion, and there is no other adequate remedy, performance may be enforced by mandamus. (Mau v. Liddle, 15 Nev. 271.) In cases where an officer or person has presented his claim against the state for services authorized by law, the amount of which has been fixed by law, and for which an appropriation has been made, the remedy by mandamus may be available. If the legislature fixed the salary of relator, and made it payable out of the state treasury, such salary became a settled demand against the state, which could not be changed by the board of examiners, and which did not require their action prior to payment.
3. If relator's claim be regarded as one not fixed by law, he has a remedy after rejection by the board, or by the state controller after action by the board, by civil suit in the district court in Ormsby County, under the foregoing sections 5653 and 5655 of the Revised laws, and therefore would not be entitled to the writ of mandate, because he would have another adequate remedy, as determined by this court today in State, ex rel. Abel, v. Eggers, 36 Nev. 372, and in other cases: State, ex rel. Gleeson, v. Jumbo Ex. M. Co., 30 Nev. 192, 133 Am. St. Rep. 715, 16 Ann. Cas. 896; Mayberry v. Bowker, 14 Nev. 340; State v. Langan, 29 Nev. 459.
As held in State v. James, 22 Nev. 263: the writ of mandamus will not issue when ordinary remedies afford adequate relief. (State v. Guerrero, 12 Nev. 105; State v. Boerlin, 30 Nev. 473.) 4. We understand that this principle of law is conceded by the relator, and that he is proceeding on the theory that his salary was fixed by law, and that an appropriation has been made for its payment from the state treasury, which ...