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vided, that nothing in this act shall be construed to mean the payment of salaries in advance." Comp. Laws, $ 2088.

Section 2: “The controller is hereby authorized and directed to draw his warrant, and the state Treasurer to pay same, in accordance with the first section of this act." Comp. Laws, $ 2089.

By an examination of numerous acts providing for the compensation of our state officers, it will be found that generally no fund is specified for the payment of their salaries.

By an act approved January 16, 1865 (Laws 1864–65, p. 97, c. 11), directly after the admission of Nevada into the Union, entitled "An act in relation to the compensation of members of the Legislature and state officers," per diem and mileage were provided for members of the Legislature in section 1.

Section 2 reads: "The Governor sball receive an annual compensation of four thousand dollars; the Secretary of State, Treasurer, and controller, an annual compensation of three thousand six hundred dollars each; the Attorney General, an annual compensation of two thousand five hundred dollars ;

The compensation of the respective state officers, as provided herein, shall be payable quarterly.

"Sec. 3. The controller is hereby authorized and required to draw his warrants upon the state Treasurer, in favor of the members of the Senate and Assembly, upon presentation of certificates of compensation due, signed by the sergeants-at-arms and the presiding officers of the two houses respectively, for the amounts named therein. He shall, on the first judicial day of the months of January, April, July, and October, draw his warrants in favor of the several state oflicers for the quarterly compensation due them by virtue of the provisions of section two of this act.”

The act nowhere mentions any fund from which the salaries were to be paid.

The act approved March 3, 1866 (Laws 1866, p. 205, c. 104), changed the compensation of the Governor and of the Lieutenant Governor, and provided that the salary of the latter should be $3,000, payable monthly, as compensation as warden of the state prison. No fund was specified.

"An act regulating and reducing the salaries and compensation of certain state offcers and attaches of the state government of Nevada," approved February 21, 1881 (Laws 1881, p. 43, c. 32), provided for the payment of reduced salaries to various state officers without mentioning any fund except for the compensation of the surveyor general and superintendent of public instruction, which was directed to be paid out of the state school fund.

The same is true of the act approved March 21, 1891 (Laws 1891, p. 104, c. 90), making further reductions in the salaries of some of the state officers, and under which the Governor, Secretary of State, Controller, Treasur

er, Attorney General, and Surveyor General are now being paid.

The general appropriation act of the last Legislature (Laws 1907, p. 222, c. 113), under which the state government is at present being maintained, and which is very similar to former general appropriation bills, begins with this language: "The following sums of money are hereby appropriated for the purpose hereinafter expressed and for the support of the government of the state of Nevada for the years 1907 and 1908 :

"Sec. 2. For the salary of the Governor, eight thousand dollars."

Then follows a list of over 80 other amounts for salaries and sums appropriated for other purposes, and no fund is specified from which these are to be paid, excepting in six instances, five of which provide that the salaries of the surveyor general and the state superintendent of public instruction and certain expenses in their offices shall be paid out of the state school fund, and one appropriating $85,000 for the support of the university, different parts of which amount are directed to be paid from the interest from the 90-acre grant, from the contingent university fund, and from the general fund, respectively.

It would seem that warrants have generally been drawn and paid and the state government conducted from its inception on the the. ory that, when no fund was specified from which money appropriated by the Legislature was to be paid for the state's ordinary expenses, the general fund was implied and understood. The salaries of the other state officers are being, and have been, paid under acts which not only do not specify any fund, but which do not direct their payment to be made out of the state treasury, as section 3, first above quoted, does for the petitioner.

In People v. Goodykoontz, 22 Colo. 509, 45 Pac. 415, the court said: "Two questions are presented by this record: First. Is the boiler inspector an officer of one of the departments of the state, and, as such, has he a preferred claim against the state for his salary? Second. Did the Legislature make such an appropriation to pay relator's salary as made it incumbent upon the auditor to issue warrants therefor?

• In the case of Goodykoontz v. Acker, 19 Colo. 360, 35 Pac. 911, it was urged that, when the salary of a public officer is fixed by law, together with the time and method of payment, this constitutes an appropriation within the terms of our Constitution and statutes. In response to this argument, the court said: Although the decisions are not uniform, it must be admitted that the trend of the more recent cases is in support of this argument.' . . There is no intention to make the salary of the inspector subject to further legislation to be inferred from anything expressed in the act. It reads: 'Said inspector shall receive an annual salary of two thousand five hundred (2,500) dollars and mileage at ten cents per

mile, payable the same as other officers of the ly indicated as though the formal words state.' And by other acts then and now in 'there is hereby appropriated' were used. No force, other state officers are paid in monthly arbitrary form of expression is dictated by installients at the end of each and every the Constitution, and none should be requirinonth; the auditor being required upon re ed. Many cases have been adjudicated in quest to draw warrants upon the state Treas states having substantially the same constituurer for such salaries. Yothing is left in tional provision as the one in question, and definite and uncertain under these provisions. so far as we have been able to ascertain they * * * The object of the constitutional pro have uniformly been determined in favor of vision inbibiting the payment of money from the relator's contention. See State of Louisithe state treasury, except by an appropria ana v. Bordelon, 6 La. Ann. 68; IIumbert v. tion made by law, is to prohibit expenditures Dunn, 81 Cal. 59, 24 Pac. 111, and cases of the public funds at the mere will und ca cited." price of the crown or those having the funds In Reynolds v. Taylor, 43 Ala. 127, the in custody, without direct legislative sanction petitioner was entitled to a salary of $2,000 therefor; but no such evil need be feared, as marshal and ex officio librarian, and the where, as in this case, the salary of the of Legislature had made provision for payment ficer is fixed, together with the time and of only $1,000 in the general appropriation method of his payment. And we conclude bill. The court said: "It is insisted that the that the act creating the office of state boiler application of appellee should be denied, beinspector and fixing his salary, when consid cause it is not shown that an appropriation ered in connection with other statutes, des had been made to pay his salary, as marshal, ignating the time, mode, and manner of pay at the sum claimed by him; but that approment, constitutes a continuous appropriation priations had been made to pay him $1,000 for such salary, and that no further legisla salary per annum only, and not $2,003, as tive sanction is necessary to authorize the claimed. We know that the general approproper officers to pay the same. This con priation acts of 1866 and 1867 appropriated clusion is in accordance with several opin- $1,000 only for the payment of the salary of ions given by the Attorneys General of this the marshal of the Supreme Court. This obstate to the auditor at different times, and jection is sumciently answered, by a decision upon which opinions the salaries of several of this court, made more than 30 years ago. of the state officers have in the past been In the case of Nichols v. Controller, 4 Stew. paid. See Report of Attorney General of & P. (Ala.) 154, it is decided that, in order Colorado, years 1889 and 1890, pp. 60 and 98; to authorize the controller to issue his war1891 and 1892, page 23. So, likewise, the rant on the treasury, for the amount of a salAttorney General of the state of Indiana has ary, it is not necessary that there should be decided the same question in the same way. a special annual appropriation by act of the See Report and Opinions of Attorney Gen Legislature, where there is a general law fixeral of Indiana for 1888, p. 155. This last ing the amount of the salary, and prescribing opinion was rendered upon this state of its payment at particular periods." facts: The Legislature having adjourned Proll v. Dunn, 80 Cal. 220, 22 Pac. 143. without making any appropriations for the “There is no provision in the Constitution salaries of the officers connected with the providing or prescribing any particular form state government for the year 1888, the ques of words in which an appropriation shall be tion presented was whether or not such sal made, except that it shall be made by law. aries should be paid by the auditor and

It is claimed that the act does not Treasurer without further legislation in the specify upon what fund the warrant is to be nature of special appropriations therefor. drawn; and, as the controller is required in In an exhaustive and able opinion, it is held every warrant to specify the fund out of that it was the duty of the auditor to draw which it is payable, therefore that it is insufwarrants for such salaries, and this conclu ficient. Several authorities are cited which sion was accepted without being questioned in are claimed to support the proposition that the courts.” See Report of Attorney Gen the act itself must specify the fund out of eral of Nevada, 1903–04, p. 18.

which the money is to be drawn, but we do In State v. Grimes, 7 Wash. 193, 34 Pac. not think they bear that construction, in the 834, it was said: “But, outside of any light sense in which it is claimed for it here, and, which may be thrown upon the intention of as to the statutes, not one appropriation act the lawmakers by aid of the title, we are in fifty designates the fund out of which the clearly of the opinion that the language em money is to be drawn. The majority of all ployed in the body of the act is amply suffi appropriations are drawn out of a single cient to show that the intention of the Legis fund, and that without any designation in lature was to appropriate. They have des the act as to what fund the money shall be ignated the amount, and have directed that it drawn from.

Neither the Constitube paid out of any moneys in the state treas tion nor the Code requires that an appropriaury not otherwise appropriated. This, we tion act shall specify the fund out of which think, is sufficient, and the appropriation the appropriation shall be paid, nor is it uscontemplated by the Constitution is as plain ual in appropriation acts to do so. If such a

specification is required, the wheels of the tinct expression of the legislative will makgovernment ought long since to have stopped, ing the appropriation. The words 'out of for out of many acts which we have examin any moneys in the treasury not otherwise aped, including the general appropriation bills propriated' are not necessary to the expresfor the current and past years, we find none sion of that will, or the making of such apwhich make such designation. It has become propriation. They are in common use in this and is the custom in this state, of very gen state, but nowhere made necessary, and are eral, but not universal, application, to use not always used." the phrase "appropriated out of any money Humbert v. Dunn, 84 Cal. 37, 24 Pac. 111: in the treasury not otherwise appropriated.' “The question is whether these provisions of But it seems to be mere custom, not founded the act constitute an appropriation' within upon any constitutional or other legislative the meaning of that term as used in section requirement. And we learn from the argu 22, art. 1, of the Constitution, which provides ment that the

that the controller interprets that that no money shall be drawn from the phrase to mean 'out of the general fund.' We treasury but in consequence of appropriations know of no law which authorizes such an made by law.' It is true, the usual formula, interpretation. On the contrary, it would 'there is hereby appropriated the sum of seem that everything authorized by law to be

dollars out of any money in the state paid out of the state treasury is payable out treasury not otherwise appropriated, for the of the general fund, if not specially made payment of salaries,' is not found in the act, payable out of some specific fund.

but the intention of the Legislature to pro

is supposed to be sufficient to meet the aggre commissioners as they accrued is clearly gate of all the appropriations made for the manifested in the language used: Each year, except such as have been expressly member * * shall receive a salary of made payable out of some special fund. two thousand four hundred dollars per an

Appropriations are made, and can num, payable monthly-and it is 'to be paid only be made, by the Legislature. The Con out of any money in the state treasury not stitution has prescribed no set form of words otherwise appropriated.' There is nothing in in which it is to be done. All that is requir- | this language indicating an intention to posted is a clear expression of the legislative will pone the payment of the salaries of the comon the subject. * * * But, says the con missioners until the next session of the Legtroller, it has not designated the fund out of islature. They are to be paid monthly, and which the appropriation is payable. It did out of any money not otherwise appropriated. not in any of the former years; nor has it Yot otherwise appropriated' when? Clearly designated the fund out of which the salaries at the time when the services are performed of any of the officers of the state, or the ex and the monthly payments become due. penses of any of the other bureaus or depart While it is customary to use the words there ments of the government, shall be paid. It is hereby appropriated the sum,' in bills aphas not said that the money is appropriated propriating money for the payment of salary out of any moneys in the treasury not other and other expenses of the government, it is wise appropriated.' What of it? The Leg- ; not essential to the validity of an appropriaislature can make no :appropriation except , tion that those words, or any of them, should 'out of the treasury. The remaining words

The remaining words ' be used, if the Legislature has clearly desigare not only a form not required by law, but nate the amount and the fund out of which usually a fiction, for at the time of the pas. : it is to be paid. * * It is claimed that wage of appropriation bills there is not usual the act is unconstitutional because it does ly any money in the treasury in excess of ex not specify the amount to be appropriated : isting appropriations, and whenever the Leg. that the amount which may be incurred as islature makes a new appropriation, it is to expenses is uncertain. So far as the travelbe assumed that it will provide funds to meet ing expenses are concernell, this contention the same. As said by Chief Justice Field, in may be good. We are not called upon to deMcCauley v. Brooks. 16 Cal. 11: Appropria- ! cide this question, however, as the only claim tions are made in anticipation of the receipt : here is for salary, which is fixed by the act at of the yearly revenues.' 'An appropriation is $2,100 per annum, payable monthly. The the art of setting apart, or assigning to a par. : act provides for the appointment of three enticular use or person, in exclusion of all oth- gineers as commissioners, and so far as their ers; application to a special use or purpose,

salaries are concerned the amount approprias of

money to carry out some ated is fixed and certain." public object.' Webster's Dict. 'An appro Campbell v. Board, 11.5 Ind. 594, 18 N. E. priation of the money to a specific object

33: "It is true, as claimerl, that no money would be an authority to the proper officers can be rightfully drawn from the treasury to pay the money, because the auditor is au except in pursuance of an appropriation made thorized to draw his warrant upon an appro- by law; but such an appropriation may be priation, and the Treasurer is authorized to made impliedly, as well as expressly, and in pay such warrant if he has appropriated general, as well as specific, terms. It may almoney in the treasury' Ristine' v. State, 20 so be a continuing or fixed appropriation, as Iud. 339. In this act we have a clear, dis well as one for a temporary purpose or a lim

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ited period. The use of technical words in a is established and for the best interests of statute making an appropriation is not neces the various counties and the state. There sary. There may be an appropriation of pub are no words in the entire act stating that lic moneys to a given purpose without in any the traveling expenses shall be paid from: manner designating the act as an appropria moneys donated by individuals or collected tion. It may be said, generally, that a di from the counties, or from the state treasrection to the proper officer, or officers, to pay ury. It is not necessary to determine whethmoney out of the treasury on a given claim, er there is any implication in regard to a or class of claims, or for a given object, may, fund or moneys from which these expenses by implication, be held to be an appropria might be paid, for the fatal objection to their tion of a sufficient amount of money to make payment is the fact that no maximum or the required payments. Ristine v. State ex other amount is specified in connection with rel., 20 Ind. 328."

them at any place in the act. Ingram v. In Carr v. State, 127 Ind. 204, 26 N. E. 778, Colgan, 106 Cal. 118, 38 Pac. 315, 39 Pac. 11 L. R. A, 370, 22 Am. St. Rep. 623, and in 437, 28 L. R. A. 187, 16 Am. St. Rep. 221; State v. Burdick, 4 Wyo. 272, 33 Pac. 125, 24 Institute v. Henderson, 18 Colo. 105, 31 Pac. L. R. A. 266, it was held that, if the salary 714, 18 L. R. A. 398. As all appropriations of a public officer is fixed and the time of must be within the legislative will, it is payment prescribed by law, no special appro essential to have the amount of the appropripriation is necessary to authorize the issuing ation, or the maximum sum from which the of a warrant for its payment. Other cases expenses could be paid, stated. This legissupporting the above and the views expressed lative power cannot be delegated nor left to are cited in the brief, and in a note beginning the recipient to command from the state at page 638, 22 Am. St. Rep. and in State v. treasury sums to any unlimited amount for Burdick, supra.

which he might file claims. True, the exact In State V. Westerfield, 23 Nev. 473, 49 amount of these expenses cannot be ascerPac. 121, an item in the general appropria tained nor fixed by the Legislature when tion bill read: “For salary of one teacher they have not yet been incurred, but it is and one assistant teacher at the State Or usual and necessary to fix a maximum eiphans' Home, two thousand four hundred dol ther in the general appropriation bill or in lars, payable out of the general school fund." the act authorizing them specifying the The court held that the general school mon amount above which they cannot be allowed. eys could not be applied to the Orphans' State v. La Grave, 23 Nev. 25, 41 Pac. Home, and treated the words "payable out of 1075, 62 Am. St. Rep. 764, stripped of dicta, the general school fund" as unconstitutional, is applicable to the question here relating null, and void, and the appropriation as if to the traveling expenses, but may be disthey had been omitted. It was said in the tinguished as not bearing on the one involvdecision: "We hold that the Legislature has ed pertaining to the salary. There it was made a valid appropriation for the payment said that, under the existing facts, it was of the salary in question, and that the same improbable that the provisions of the stat. is payable out of the general fund in the ute were intended as an appropriation bestate treasury the same as the salary of the cause the number of military companies that Governor and most of the other state officers, could have received its benefits was inand the same as other appropriations in definite and uncertain. The act named an which no specific fund is named. * * * It amount for each company. The number of will be observed that it is not required that companies which might take advantage of the fund out of which the appropriations are its provisions was uncertain, as was also the to be made shall be named in the appropria aggregate of the sums which might be drawn tion act."

from the treasury. The act did not specify The petitioner's claim for traveling ex. any maximum within which the allowances penses is viewed in a different light from were to be confined, and no provision was his demand for salary. By a perusal of the

made in the general appropriation bill. language in this regard in section 3, it will Hence the total money which might be drawn be observed that not only no fund is specifi from the state treasury was not specific, but ed, but there is no language directing pay was not as uncertain as it is here. The lanment out of the state treasury such as is guage in section 3 that "the members of the contained in the provision for the salary. commission shall be allowed actual expenses Section 6 of the act directs that the commis of travel incurred in travelling upon the offision shall have the right to solicit and receive cial business of the commission” is not acprivate contributions, but shall accept no companied by any limitation of the travel to money or other considerations from any firm this state or elsewhere, and is broad enough,

individual in payment of specific services if enforced, without any maximum amount or favors rendered. Section 8 provides that being named by the Legislature, to allow the there may be allowed to such commission by members of the commission to travel around the commissioners of the several counties a the world ad libitum on the business of the sum not exceeding in amount $250 per year commission at the expense of the state. This from each county in the state to be used by indefiniteness does not exist in regard to the the commission for the purpose for which it salary, which has been fixed by the Legisla

ture, and which is certain as to the amount | 2. SAME – Acts CONSTITUTING CONVERSION and as to the person to whom, and the time

SALE BY MORTGAGOR OF MORTGAGED CHAT

TELS. when, it is to be paid.

An absolute sale, to the exclusion of the As section 3 of the act creating the commis rights of a mortgagee, by a mortgagor, who, sion states that "the chairman shall receive under the terms of the mortgage, remains in pos

session of the chattels, works a conversion thereas compensation for his services to be paid

of, for which the mortgagee may maintain trover out of the state treasury the sum of two without demand. thousand five hundred dollars per annum, 3. PLEADING-ALLEGATIOXS-DIRECTNESS. payable in equal monthly installments upon A pleading should state the facts directly

and positively, and not hypothetically or by the first day of each and every month," and

way of recital. the act of March 8, 1879, that all officers

[Ed. Note.-For cases in point, see Cent. Dig. whose salaries are fixed by law shall be en vol. 39, Pleading, $ 38.] titled to receive the same on the first day of 4. SAME-DEMURRER-GROUNDS. each calendar month, and that the state con

A defect in a pleading, because it states troller is authorized and directed to draw his

the facts hypothetically or by way of recital,

may be raised by general demurrer. warrant and the state Treasurer to pay the

[Ed. Note.-For cases in point, see Cent. Dig. same, it is clear that petitioner is entitled to

vol. 39, Pleading, $ 417.] his salary. No other construction would be

5. CHATTEL MORTGAGES - CONVERSION OF in harmony with the plain meaning and di MORTGAGED PROPERTY-ACTIONS-ANSWERrections of these sections. As the Legisla

SUFFICIENCY.

In trover by a mortgagee for conversion of ture has named the amount of the salary and

sheep, an answer alleging that if any of the directed the issuance of warrants and its sheep ever belonged to the mortgagor, and were Payment monthly out of the state treasury, intended to be included in the chattel mortgage, any additional act providing for the accom

if any mortgage existed, the mortgagee, in per

mitting the mortgagor to sell and neglecting to plishment of these purposes which are al

notify defendant of his rights, if any, under the ready shown to have been intended is not re mortgage, was barred from claiming the propquired and would be an unnecessary repeti

erty against defendant, is fatally defective for

failing to allege any fact positively. tion. Section 6 of "An act relating to the

6. APPEAL – REVIEW – PREJUDICIAL ERROR duties of the state controller," approved

ADMISSION OF EVIDENCE. February 24, 1866 (Laws 1866, p. 97, c. 43), . Where the answer contained no positive aldirects that no warrant shall be drawn on the

legation of a fact, but only by way of recital,

the error in admitting evidence to prove such Treasurer except there be an unexhausted,

fact was prejudicial. specific appropriation by law to meet the

7. PRINCIPAL AND AGENT-ACTS OF AGENTsame. It is not contended that the fund is RATIFICATION. exhausted. It is evident that there is an

Where a sale is completed before knowledge

of it reaches the principal, and no change in appropriation by law for the salary of the

the condition of the parties can occur from his chairman of

of the commission because the delay to approve or disapprove it, mere silence amount and time and manner of payment are

does not work an estoppel, though it may be

evidence of ratification, specific and certain, but not so in regard to

(Ed. Note. For cases in point, see Cent. Dig. the traveling expenses. If the section relat

vol. 40, Principal and Agent, $ 638.) ing to the duties of the controller is in con

8. SAME. flict, which is not apparent, it would be con

Where one, in selling goods, did not purport trolled by the later acts fixing the salary of to act as agent of a third person, but in his the petitioner as a state officer and directing own right as owner, the third person could not the controller to draw his warrants in favor

be bound thereby, on the theory of ratification of state ofii.'ers for their salaries on the first

of an unauthorized act of his agent.

[Ed. Note.-For cases in point, see Cent. Dig. of each month.

vol. 40, Principal and Agent, $ 622.] Submission of the case was made upon de

9. CHATTEL MORTGAGES - CONVERSION OF murrer as upon the merits.

MORTGAGED PROPERTY-EVIDENCE-ADMISSIIt is directed that a writ of ma mrdate issue BILITY. commanding the defendant, as state control In trover by a mortgagee against the buyer ler, to draw his warrant upon the state Treas

of mortgaged chattels, evidence that similar acts

of sale of mortgaged chattels by the mortgagor urer in favor of the plaintiff for the salary had been approved by the mortgagee was inadclaimed, but not for the traveling expenses. missible, unless accompanied by evidence that

the buyer knew thereof at the time he made the

purchase. NORCROSS and SWSENEY, JJ., concur.

10. SAME.

Where a mortgagor wrongfully sold and de

livered mortgaged chattels to a buyer, and he (40 Colo. 401)

mingled the chattels with other chattels of a

similar kind, the burden was on the buyer, in ILFELD v, ZIEGLER et al.

trover by the mortgagee, to show what property

was and what was not described in the mort(Supreme Court of Colorado. July 1, 1907.)

gage. 1. CHATTEL MORTGAGES-SALE BY MORTGAGOR 11. SAME. -VALIDITY.

Where chattels covered by a mortgage are A mortgagor, who, under the terms of the traced into the possession of one who had conmortgage, remains in possession of the chat structive notice thereof, and he seeks to prove tels, may, before default, sell the chattels sub that his possession was rightful, the burden of ject to the mortgage,

proving such possession rests on him; and if

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