No. 1452. | Nev. | Oct 5, 1895
The facts appear in the opinion. Original application for a writ of mandamus to compel the respondent, as state controller, to draw a warrant upon the treasury in favor of relator, for certain expenses claimed to be payable to him under the following statute: "It shall be the duty of the superintendent of public instruction to visit each county in the state, at least once in each year, for the purpose of visiting schools, of consulting county superintendents, of lecturing and addressing public assemblies on subjects pertaining to public schools; and the actual traveling expenses incurred by the superintendent in the discharge of his duty shall be allowed, audited and paid out of the general fund, in the same manner as claims upon said fund are now allowed, audited and paid;provided, that the sum so expended in any one year shall not exceed one thousand dollars." (Gen. Stats. 1292.)
The affidavit for the writ states that the relator visited the schools at Wadsworth and Virginia City, and while at those places necessarily incurred certain expenses at the hotels for board and lodging. The statute permits the payment of "actual traveling expenses." Do these items come within the meaning of those words? It seems to us very clear that they do not. Undoubtedly they are a part of the expenses of the trips which the legislature required the relator to make, and which that body must have known would necessarily be incurred by him in making his visits. It must also have known that if he addressed public assemblies expense would necessarily be incurred in providing a hall for that purpose, *91 for fuel, lights, etc. But it seems to have been the intention that none of these expenses should be borne by the State. It is not the expense of the trip, or the expense incurred after the superintendent arrives at his destination, that is to be paid, but his "actual traveling expenses." Travel, in visiting a school, is going to and returning from the place where the school is situated. But, after he arrives there, he certainly is not, during his stay, traveling; consequently his expenses, while there, are not incurred in traveling. But to make the matter still more certain, and apparently for the purpose of insuring that no general expense of the trips should be included, it is provided that the traveling expenses must be "actual." There are to be no constructive traveling expenses paid, but only such as are actual; that is, such as are real, bona fide, genuine expenses of travel. Had it been the intention to pay all the legitimate expenses of the superintendent's trips, these words of limitation would not have been used.
Whatever else may be included in the term "actual traveling expenses," we think it was not intended to include hotel expenses while staying at a place for the purpose of visiting the schools or discharging the other duties of the office.
It was said in argument that it has been the custom for many years past to allow and pay such items so incurred by the superintendents, and that such construction of the statute by the officers having power to allow claims against the state is entitled to great weight in determining its meaning.
Where property rights have been built up in reliance upon an erroneous construction of a statute by public officers, or where overturning such a construction would unsettle many important laws, and consequently cause loss and hardship to the community, these considerations sometimes press quite heavily upon the courts, especially if the true construction was really doubtful. But where such is not the case, and where the statute is as clear as we deem this to be, to so hold would simply be to say that as the state has been, for a long time, paying these illegal claims, it must continue to do so. Contemporaneous construction, no matter how long continued, would never justify such a conclusion as that. (Endlich, Inter. Stats., sec. 361; Albright v. BedfordCounty, 106 *92 Pa. St. 582.) This is said upon the assumption that the statement concerning the payment of the claims is true, as seems to be admitted, or at least not denied, by the attorney-general; but no proof has been made of it, and we can hardly be expected to take judicial notice of the fact.
This would also seem to be a case where it is the duty of the controller to audit the claim before the owner is entitled to a warrant (Gen. Stats. 1811;State v. Doran,
Writ refused.