10 Nev. 28 | Nev. | 1874
By the Court,
This is an application for a writ of mandamus to compel respondent to issue to relator a warrant on the State treasurer for the sum of five thousand three hundred and ninety-seven dollars and sixty-five cents claimed to be due relator for his salary as ex officio warden of the State prison.
The legislature, at its last session, passed “ An act to provide for the government of the. State prison of the State of Nevada” (Stat. 1873, 71), which provides that “the State prison commissioners shall meet on the first Monday of April, A. D. 1873, for the purpose of selecting a warden of the State prison. * * * The warden, so selected, shall receive a salary not to exceed three thousand dollars per annum.” (Sec. 4.)
“An act entitled ‘An act to provide for the government of the State prison of the State of Nevada,’ approved March 4, 1865, '* * * and all acts and parts of acts in conflict with the provisions of this act, are hereby repealed; provided, nothing in this act contained shall be so construed as to in any manner interfere with, or deprive the present ex officio warden of the compensation as named in section twenty-five of the act hereby repealed, during the term for which he has been elected lieutenant-governor of this State. And the sum of eight thousand ($8000) dollars is hereby appropriated out of any money coming into the general fund, not otherwise appropriated, for the payment of the salary of the lieutenant-governor, for house rent, furniture, and the necessary provisions for his table; and the controller is hereby authorized and directed to draw his warrant in favor of the said lieutenant-governor for the said amount at the-same time and in the same manner as warrants are drawn in favor of all other State officers, and the State treasurer is hereby directed to pay the same.” (Sec. 23.)
While admitting that the office of ex officio warden, having been created by law, might be abolished by law without any regard to his term of office as lieutenant-governor, or his salary as warden, relator claims: First. That he was illegally removed because the office was not abolished by said act of 1873, nor himself impeached for malfeasance or misfeasance in office. Second. That if mistaken upon this view of the law, that he is nevertheless entitled to a warrant as prayed for upon the express language of the first clause of the proviso contained in section twenty-three, and that, in addition to his salary as ex officio warden, he is entitled, under the second clause, to the further sum of eight thousand dollars for his salary as lieutenant-governor.
It was admitted upon the hearing that relator had quarterly received his warrants from respondent in the sum of one thousand dollars for his ‘ ‘ salary as lieutenant-governor, ” and that the same had been paid by the State treasurer. If relator relied solely upon his first proposition, he has mistaken his remedy. It would be necessary for him to institute proceedings in the nature of a writ of quo warranto in order to establish his right to the office. (State ex rel. Jackson v. Mosely, 34 Mo. 375; State ex rel. Jackson v. Thompson, 36 Mo. 70; Bonner v. The State, 7 Ga. 473; People ex rel. Smith v. Olds, 3 Cal. 167.)
But waiving this irregularity we think the act of 1873, in so far as it provides for the election of a warden by the State prison commissioners, is valid. The legislature having by the act of March 4, 1865, vested certain duties upon the lieutenant-governor, and allowed him a salary for his serv
Did the legislature intend, by the act of 1873, to give relator a salary as lieutenant-governor, and also a salary as ex officio warden of the State prison?
Section 25 of the act approved March 4, 1865, referred to in section 23 of the act approved March 7, 1873, fixed the compensation of the warden at two thousand four hundred dollars per annum, “to be paid monthly out of the State prison fund.” This section was superseded by the act approved March 3, 1866. “The salary of the lieutenant-governor shall be three thousand dollars, payable monthly, as compensation as warden of the State prison.” (Stat. 1866, 205, Sec. 1.) Section 7 of the act of 1865 was amended in 1867. The amended act provides that, “The warden shall reside at the prison buildings, and shall be provided by the State with apartments suitably furnished.” And it is made the duty of the board of State prison commissioners to furnish him with the “necessary provisions for his own table.” (Stat. 1867, 123.)
It must be admitted that the proviso in section 23 of the act of 1873 is peculiarly worded and carelessly drawn. The reference to section 25 of the act of 1865 is evidently a mistake. The second clause is incomplete. The act of 1873,
When all tbe acts are considered together it seems to us conclusive that it was tbe intention of tbe legislature, by the act of 1873, to relieve tbe relator from tbe responsibilities and duties of tbe office of warden, deprive him of its honors, and allow him to receive a sum of money wddeh the legislature deemed equivalent to tbe compensation be would have received as ex officio warden during bis term of office as lieutenant-governor if no change bad been made.
Tbe appropriation of tbe sum of eight thousand dollars was to be in lieu of bis salary.and “apartments suitably furnished,” including also “tbe necessary provisions for bis own table.” This clause must be construed tbe same as if tbe words, as such ex officio warden, were inserted after ' tbe words “lieutenant-governor.” Any other construction would be absurd.
Tbe relator has received tbe salary allowed him by tbe act under consideration. His application is devoid of merit.
Tbe writ is denied.
