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State v. McMillan

December 31, 1913


William Forman, for Petitioner.

Geo. B. Thatcher, Attorney-General, for Respondent.

By the Court, Talbot, C. J.:

Relator applies for a writ of mandate commanding the state treasurer to pay out of the “state insurance fund” a claim which has not been approved by the board of examiners. It is agreed that the case be considered as standing upon demurrer to the petition, and the question argued, and which the court is requested to determine, is whether the state treasurer may properly pay claims against this fund without the approval of the board of examiners and the warrant of the state controller. The respondent has taken the safer course by refusing to pay before an adjudication of the statute is obtained.

The legislature at its last session passed an act entitled: “An act relating to the compensation of injured workmen in the industries of this state and the compensation to their dependents where such injuries result in death, creating an industrial insurance commission, providing for the creation and disbursement of funds for the compensation and care of workmen injured in the course of employment, and defining and regulating the liability of employers to their employees; and repealing all acts and parts of acts in conflict with this act.” (Stats. 1913, c. 111.) It provides for the “Nevada Industrial Commission,” to be composed of the governor, state mining inspector, attorney-general, and two others to be selected by the three named, that a majority of these shall constitute a quorum for the transaction of the business of the commission, and for a state insurance fund, to be derived from premiums to be paid by employers, based on percentages of monthly payrolls, in cases where notice of rejection of the terms of the act is not served by the employer or employee.

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Section 24 provides that all premiums designated in the act shall be paid to the state treasurer, and shall constitute the state insurance fund for the benefit of employees and their dependents.

Section 40 provides that the state shall not be liable for the payment of any compensation under the act except from the state insurance fund, to be derived from the payment of these premiums, and section 41 that the expenses of administration shall not exceed ten per cent of the amount of the premiums paid into this fund.

Differently from the provisions generally existing in other states, our constitution provides that the governor, secretary of state and attorney-general shall “constitute a board of examiners with power to examine all claims against the state, except salaries or compensation of officers fixed by law.” (Art. 5, sec. 21.) The organic act also provides, at section 19, article 4, that no money shall be drawn from the state treasury but in consequence of appropriations made by law, and at section 22, article 5, that the secretary of state, state treasurer, and state controller shall perform such other duties as may be prescribed by law.

Section 4459 of the Revised Laws provides that: “All claims against the state for service or advances, for payment of which an appropriation has been made by law, and which have been by law authorized, but of which the amount has not been liquidated and fixed, must be presented to the board of examiners in the form of an account or petition, and in such manner as said board shall prescribe by their rules. * * * The controller shall not allow or draw his warrant for any claim of the class described in this section, which shall not have been approved by said board, or a greater amount than allowed by said board, except when said claim shall not have been acted upon by said board within thirty days prior to its presentation.”

Section 4157 provides: “He shall keep and state all accounts between the State of Nevada and the United States, or any state or territory, or any individual,

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corporation, or public officer of this state, indebted to the state, or instrusted with the collection, disbursement, or management of any moneys, funds or interests, arising therefrom, belonging to the state, of every character and description whatsoever, where the same are derivable from or payable into the state treasury. He shall examine and settle the accounts of all county treasurers, and other collectors and receivers of all state revenue, taxes, tolls, and incomes, levied or collected by any act of the legislature and payable into the state treasury, and certify the amount or balance to the state treasurer. He shall keep fair, clear, distinct, and separate accounts of all the revenues and incomes of the state, and also, all the expenditures, disbursements, and investments thereof, showing the particulars of every expenditure, disbursement, and investment.”

Section 4158 enacts: “He shall audit all claims against the state, for the payment of which an appropriation has been made, but of which the amount has not been definitely fixed by law, and which shall have been examined and passed upon by the board of examiners, or which shall have been presented to said board, and not examined and passed upon by them within thirty days from their presentation; and he shall allow of said last-mentioned claims (not passed upon by the board of examiners within said thirty days after presentation), the whole, or such portion thereof as he shall deem just and legal, and of claims examined and passed upon by the board of examiners, such an amount as he shall decree just and legal, not exceeding the amount allowed by said board. And no claim for services rendered, or advances made to the state or any officer thereof, shall be audited or allowed unless such services or advancement shall have been specially authorized by law, and an appropriation made for its payment. For the purpose of satisfying ...

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