State ex rel. Lewis v. Doron

5 Nev. 399

• Court: Nevada Supreme Court
• Decided: January 15, 1870
• Status: Published

Opinion

By the Court,

WHITMAN, J.:

The relator, by his affidavit, shows that he. is a member of the Board of State Printing Commissioners of the State of Nevada, filling the position of Expert and Secretary. That he has been allowed for his services in such capacity, by the State Board of Examiners, the sum of nineteen hundred and sixty dollars. That such allowance has been reported by the Board to defendant, the State Controller; wbo, although requested, refuses to issue his warrant upon the treasury for the amount allowed.

A mandamus to compel such issuance is prayed. Upon the affidavit an alternative writ was ordered; and defendant appearing, demurs to the sufficiency of the affidavit, upon the general ground that it does not state facts sufficient to constitute a cause of action. Several specifications are made; but the only one important to be considered, is that based upon the neglect of relator to aver that his claim had either been audited by the'Controller, or that request had been made for such action.

The point made upon argument, that relator’s claim is in the nature of a salary, and therefore exempt from action either of Board of Examiners, or Controller, will not be considered in this opinion, for the reason that the- affidavit charges no breach of duty by defendant, based upon any such hypothesis.

The position taken by defendant is, that, as Controller, it is his right and duty to audit all claims coming under the provisions of the statute entitled “ An- Act to amend an Act entitled ‘ An Act defining the Duties of the State Controller,’ approved February 24th, 1866,” passed March 3d, 1869. This Act is as follows:

“ Section 1. Section five of the above entitled Act is hereby amended, so as to read as follows: Section five. 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 with [in] 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 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 pay-men! For the purpose of satisfying himself of the justness and legality of any claim, he shall be allowed to examine witnesses under oath, and to receive and consider documentary evidence in addition to that furnished him by the Board of Examiners. He shall draw warrants on the Treasurer for such amounts as he shall allow of claims of the character above described, and also for all claims of which the amount has been definitely fixed by law, and for the payment of which an appropriation shall have been made.” (Stats, 1869,158.)

Opposing this position, the relator contends that the Act cited is unconstitutional, for that it attempts to take away from the Board of Examiners the power expressly conferred upon them by the Constitution, of auditing all claims against the State. It is confessed that no attempt has been made to have this claim audited by the Controller, and for the reason that, having been allowed by the Board of Examiners, it is in all respects a liquidated demand, entitled to payment without further examination, and upon which a warrant should presently issue.

In reply, defendant says that the power claimed for the Board of Examiners is greater than exists by virtue of the Constitution; and that, by that instrument, he is made the ultimate and final auditor of all claims requiring such action.

The sections of the Constitution relied upon by the parties are as follows:

“ Sec. 19. A Secretary of State, a Treasurer, a Controller, a Surveyor General, and an Attorney General, shall be elected at the same timé and places, and in the same manner, as the Governor. The term of office of each shall be the same as is prescribed for the Governor. Any elector shall be eligible to either of said offices.

“ Sec. 21. The Governor, Secretary of State, and Attorney-General * *' * shall also constitute a Board of Examiners, with power to examine all claims against the State, (except salaries or compensation of officers fixed by law) and perform such other duties as may be prescribed by law. And no claim against the State (except salaries or compensation of officers fixed by law) shall be passed upon by the Legislature, without having been considered and acted upon by said ‘ Board of Examiners.’” (Const. Art. V.)

Premising that every statute is to be upheld, unless plainly and without reasonable doubt in conflict with the Constitution; that the Legislature has power to pass any law, not positively prohibited, or by clear implication forbidden by the Constitution; and that such instrument is to be construed in the ordinary sense and usage of language — literally, unless some apparent absurdity, or obvious and manifest violation of the sense of the instrument, or unmistakable intent of its framers forbids; and that it is not allowable to interpret what -has no need of interpretation: it would seem that the question presented was of no difficult solution.

Looking at the section first referred to, it will be seen that an officer called a “ Controller ” was provided for. His duties are not otherwise specified, than by the name of his office; and nothing, save this, is anywhere said concerning them in the Constitution— except as follows:

“ Sec. 21. The Secretary of State, State Treasurer, State Controller, Surveyor-General, Attorney-General, and Superintendent of Public Instruction, shall perform such other duties as may be prescribed by law.” (Const., Art. V.)

Nor are any duties, save in the manner suggested, prescribed in the Constitution for the Treasurer or Surveyor-General. Why, then, say that they and the Controller shall perform such other duties as may be prescribed by law, if no duties have been mentioned ? Evidently, because the official name implies recognized duties appurtenant thereto. This, probably, will be undisputed as to the first two named officers. A little examination will show that it is equally clear as to the Controller.

Upon review of the Constitution and statutes of the different States of this Union, it will be found, that in a large majority some supervising officer of revenue is provided for — among whose duties is the final auditing and settling of all claims against the State; and in all cases where such distinctive officer exists, he is called, indifferently, “ Controller of Public Accounts,” “Auditor,” “ Controller-General,” “Auditor-General,” “Auditor of State,” “Auditor of Public Accounts,” or “ Controller.” For instance: in Alabama, Connecticut, and Texas, be is styled “ Controller of Public Accounts ” ; in Arkansas, Indiana, Kansas, Minnesota, and Ohio, he is styled “Auditor ” ; in Georgia, “ Controller-General ” ; in Michigan, “Auditor-General ”; in Iowa, Missouri, and Rhode Island, “Auditor of State,” or “ State Auditor ” ; in Illinois, Kentucky, Mississippi, Oregon, and Virginia, “Auditor of Public Accounts ” ; in California, New York, and Nevada, “ Controller.” This, then, being the received use in the States of this Union of these official names, it follows that the Constitutional Convention of Nevada thus used the term “ Controller,” unless the instrument itself negatives such presumption. Of that hereafter.

So far as the sections touching the Controller are concerned, they sustain this position: first, in naming the officer ; second, in suggesting other duties, when none had before been named, unless they followed and attached to the titular designation of such officer.

It is not improper in this connection to examine the debates upon the subject, though of course they are not authoritative, nor is any binding effect to be given them — as it is the text of the Constitution which the people adopted. It appears that it was proposed in Convention to strike out the words “ State Controller,” and substitute “Auditor of State,” in order that there might be no necessity of altering the territorial statutes defining the duties of the office, and for no other reason. Upon suggestion, however, that such difficulty could be obviated'in the schedule, the motion was lost — every member who spoke upon the question, however, agreeing that the names were synonymous. (Debates, 613-14.) Following the suggestion made, it-was provided in the schedule that * * “ The Territorial Auditor shall continue to discharge the duties of his said office until the time appointed for the qualification of the State Controller.” (Const., Art. XVII, Sec. 14.)

The relator, however, contends that the word “ Examiners ” means “Auditors; and that the powers incident to the name, being specially conferred, are taken from the Controller. Admit the proposition as to the meaning of the word, yet the conclusion does not follow: for the Board of Examiners might be Auditors, and still the Controller be, as his name implies, Chief Auditor. There are Auditors known in the Federal Government and elsewhere, of various grades. Rut why seek to interpolate a word into the Constitution, or give to a word already there a meaning not absolutely clear, when by a literal reading the various sections are harmonious ? In construing a Constitution the thing to be sought is the thought expressed.

The Constitution of the State of Nevada says, that * * “ No claim against the State (except salaries or compensation of officers fixed by law) shall be passed upon by the Legislature, without having been considered and acted upon by said ‘ Board of Examiners.’ ” Why ? As a restriction of legislative power. It having all law-making power not taken away, could perhaps have entirely ignored the Board of Examiners, in absence of some prohibitory language — such was the view under which the clause quoted was offered. (Debates, 161.)

Such prohibition was unnecessary as to the Controller, as he possesses only such powers as the Constitution confers upon him— therefore, when that instrument empowers the Board of Examiners to examine all claims, he must exercise his power subject to such examination. What is this examination ? Confessedly, by the words used, and as admitted by counsel on the argument of this case, with reference to the Legislature, only advisory.

■ Why greater or higher toward the Controller ? Because, says counsel, otherwise there arises one of two absurdities: Either there is a' Board with power only to examine — which is a nugatory, idle matter — or else, there is a Controller with power to allow, but no power to examine.

As to the first proposition be it gaid, that with reference to the Legislature only such idle and nugatory power, if such it be, exists; and it can involve no more absurdity in one case than in the other. But such power is neither idle nor nugatory. It may and probably does materially assist both the Legislature and Controller. It serves to give a fuller airing and ventilation of claims, than might or probably would follow from one examination — and to that extent, throws additional restraints and safeguards around the treasury.

The second objection has no existence, provided the definition of the word “ Controller,” before given, be correct. The Board is advisory; he is chief. They assist in his onerous duties — acting concurrently, so far as examination is concerned: but they do not deprive him of his constitutional power, or any portion of it. Each moves in a designated sphere — all tending to the desired result: the protection of the revenues of the State.

It cannot with propriety be claimed that an absurd meaning should be given any constitutional clause, when such result can properly be escaped — and here no absurdity arises, if words be read in their ordinary and usual sense.

It is argued that this view deprives the Board of Examiners of all power, and places them in a subordinate position. By no means. The power granted is great and useful; and though its magnitude would be increased by the opposite view, its usefulness would be diminished — as in that case, the Board would be the sole tribunal, before which claims against the-State would be examined: while, on the other hand, the investigation is double, consequently more searching and protective.

It must be remembered that this Board is composed of State officers, having other high and responsible duties imposed and powers given by the Constitution — this matter of examining claims being only in addition thereto; so if there be any -force in the argument that they are rendered subordinate, still such subordination is in only one particular, outside of the special powers pertaining to their general official position, and the point taken would therefore seem to have more force as applied to the Controller, who, although equally a constitutional officer, and naturally, it would be supposed, •created for some important purpose in the State administration, would be the veriest clerk, if it be held that the Examiners are the sole auditors. Possibly such was the intention; but it would be taking a bold and rash step to thus emasculate the official function of a constitutional officer without the clearest expression. To do so by implication would be without warrant.

Such arguments, however ingenious, can lend no aid to the proper reading of a Constitution, save so far as they may tend to point the thought sought to be expressed by its framers. Is this or any extraneous aid necessary in this case ? The Court of Appeals of New York has well stated the rule within which this case comes, saying:

“ Whether we are considering an agreement between parties, a statute, or a constitution, with a view to its interpretation, the thing we are to seek is the thought which it expresses. To ascertain this, the first resort in all cases is to the natural signification of the words employed, in the order and grammatical arrangement in which the framers of the instrument have placed them. If, thus regarded, the words embody a definite meaning which involves no absurdity, and no contradiction between different parts of the same writing, then that meaning apparent upon the face of the instrument is the one which alone we are at liberty to say was intended to be conveyed. In such a case there is no room for construction. That which the words declare is the meaning of the instrument; and neither Courts nor Legislatures have the right to add or to take away from that meaning. This is true of every instrument; but when we are speaking of the most solemn and deliberate of all human writings, those which ordain the fundamental law of States, the rule rises to a very high degree of significance. It must be very plain — nay, absolutely certain — that the people did not intend what the language they have employed, in its natural signification, imports, before a Court will feel itself at liberty to depart from the plain reading of a constitutional provision.” (Newell v. The People, 3 Seld. 97.)

’It is further urged that the word “ examine,” if not directly expressing, yet necessarily implies the power of allowance or rejection which is consequently taken from the Controller. If such be the implication, still, pursuing the same train of reasoning, and following the same authority as before, it is a primary action subject to the^ ultimate and final decision of the Controller. Whether the word carries with it the additional meaning as claimed or not, still, as the Legislature has the power to establish any condition precedent to the obtaining a warrant on the treasury, so that the Constitutional power of the Controller is not trenched upon, nor any constitutional right of a claimant infringed, it is perfectly legitimate to provide that the Board of Examiners shall, upon investigation of claims, allow or reject the same — subject, of course, to the final revision of the Controller. Such seems to be the object of the statute under review. It takes nothing away from the constitutional power of the Examiners, and adds nothing to those of the Controller ; nor does it deprive a claimant of any right.

Such was not the case in the Wisconsin Statute, commented on in The State ex rel. Crawford v. Hastings, (10 Wis. 525) cited by counsel for relator. The statute there considered attempted, at least so the Court thought, to virtually supersede a constitutional officer and deprive him of his legitimate authority. The reasoning of the opinion, however, applies with force to the case at bar, in the view here taken.

By the Constitution of Wisconsin, the Secretary of State was made “ ex officio Auditor ”; no duties were prescribed, but the Court held that this official designation carried with it a positive delegation of powers, among which was the auditing of all accounts and demands against the State. Now it has been seen that, as used in the Constitutions and statutes of the States of this Union, the words “ Auditor ” and “ Controller ” are synonymous; therefore, upon the reasoning of the Court referred to, the official designation of Controller, in the Constitution of the State of Nevada, of its own force, was a positive delegation of the powers usually incident to the office of Controller, Auditor, Controller-General, Auditor-General, or any of the various names used to designate a like officer. It would be violating the plainest rules of constitutional construction to attempt to take away this recognized power, because, in addition to this superior officer, the framers of the Constitution had provided a Board who should “ examine ” all claims against the State.

As has been said, such provision was undoubtedly wise and just, and in strict harmony with the evident attempt pervading the entire instrument — to guard the people’s money. Using the word “ Controller,” a specific and defined meaning was expressed, comprising many powers, among which is the examination and allowance of claims against the State.

In section twenty-one, article four, of the Constitution, as touching the Board of Examiners a specific power is conferred, subject to the higher authority, which could be legitimately amplified by legislative action, in any direction not opposed to its nature, nor subversive of the positive power delegated the Controller by virtue of his official designation.

Turning to that portion of the statute attacked, which is applicable to this case, it will be seen that the Legislature provides that the Controller “ 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 ” * * * * *. This enactment is not in violation of the Constitution, but, as has been seen, strictly in conformity therewith.

As the relator has failed to state a compliance with the portion of the law last quoted, he has consequently failed to state a sufficient cause of action, and therefore the demurrer is well taken. It was understood, upon the argument, that the relator could not amend in this regard; but to save all question, he will be allowed time.

The order of the Court is that the demurrer be sustained, with leave to relator to amend within ten days.

Let it be so entered.