Opinion of the Court-Talbot, C. J.

decide this question, however, as the only claim here is for salary, which is fixed by the act at $2,400 per annum, payable monthly. The act provides for the appointment of three engineers as commissioners, and so far as their salaries are concerned the amount appropriated is fixed and certain."

Campbell v. Board, 115 Ind. 594, 18 N. E. 33: "It is true, as claimed, that no money can be rightfully drawn from the treasury except in pursuance of an appropriation made by law; but such an appropriation may be made impliedly, as well as expressly, and in general, as well as specific, terms. It may also be a continuing or fixed appropriation, as well as one for a temporary purpose or a limited period. The use of technical words in a statute making an appropriation is not necessary. There may be an appropriation of public moneys to a given purpose without in any manner designating the act as an appropriation. It may be said, generally, that a direction to the proper officer, or officers, to pay money out of the treasury on a given claim, or class of claims, or for a given object, may, by implication, be held to be an appropriation of a sufficient amount of money to make the required payments. (Ristine v. State ex rel., 20

Ind. 328.)"

In Carr v. State, 127 Ind. 204, 26 N. E. 778, 11 L. R. A. 370, 22 Am. St. Rep. 625, and in State v. Burdick, 4 Wyo. 272, 33 Pac. 125, 24 L. R. A. 266, it was held that, if the salary of a public officer is fixed and the time of payment prescribed by law, no special appropriation is necessary to authorize the issuing of a warrant for its payment. Other cases supporting the above and the views expressed are cited in the brief, and in a note beginning at page 638, 22 Am. St. Rep., and in State v. Burdick, supra.

In State v. Westerfield, 23 Nev. 473, 49 Pac. 121, an item in the general appropriation bill read: "For salary of one teacher and one assistant teacher at the state orphans' home, two thousand four hundred dollars, payable out of the general school fund." The court held that the general school moneys could not be applied to the orphans' home, and treated the words "payable out of the general school fund" as unconstitutional, null, and void, and the appropriation as if they

Opinion of the Court-Talbot, C. J.

had been omitted. It was said in the decision: "We hold that the legislature has made a valid appropriation for the payment of the salary in question, and that the same is payable out of the general fund in the state treasury the same as the salary of the governor and most of the other state officers, and the same as other appropriations in which no specific fund is named. * * * It will be observed that it is not required that the fund out of which the appropriations are to be made shall be named in the appropriation act.”

The petitioner's claim for traveling expenses is viewed in a different light from his demand for salary. By a perusal of the language in this regard in section 3, it will be observed that not only no fund is specified, but there is no language directing payment out of the state treasury such as is contained in the provision for the salary. Section 6 of the act directs that the commission shall have the right to solicit and receive private contributions, but shall accept no money or other considerations from any firm or individual in payment of specific services or favors rendered. Section 8 provides that there may be allowed to such commission by the commissioners of the several counties a sum not exceeding in amount $250 per year from each county in the state to be used by the commission for the purpose for which it is established and for the best interests of the various counties and the state. There are no words in the entire act stating that the traveling expenses shall be paid from moneys donated by individuals or collected from the counties, or from the state treasury. It is not necessary to determine whether there is any implication in regard to a fund or moneys from which these expenses might be paid, for the fatal objection to their payment is the fact that no maximum or other amount is specified in connection with them at any place in the act. (Ingram v. Colgan, 106 Cal. 118, 38 Pac. 315, 39 Pac. 437, 28 L. R. A. 187, 46 Am. St. Rep. 221; Institute v. Henderson, 18 Colo. 105, 31 Pac. 714, 18 L. R. A. 308.)

As all appropriations must be within the legislative will, it is essential to have the amount of the appropriation, or the maximum sum from which the expenses could be paid,

Opinion of the Court-Talbot, C. J.

stated. This legislative power cannot be delegated nor left to the recipient to command from the state treasury sums to any unlimited amount for which he might file claims. True, the exact amount of these expenses cannot be ascertained nor fixed by the legislature when they have not yet been incurred, but it is usual and necessary to fix a maximum either in the general appropriation bill or in the act authorizing them, specifying the amount above which they cannot be allowed.

State v. LaGrave, 23 Nev. 25, 41 Pac. 1075, 62 Am. St. Rep. 764, stripped of dicta, is applicable to the question here relating to the traveling expenses, but may be distinguished as not bearing on the one involved pertaining to the salary. There it was said that, under the existing facts, it was improbable that the provisions of the statute were intended as an appropriation because the number of military companies that could have received its benefits was indefinite and uncertain. The act named an amount for each company. The number of companies which might take advantage of its provisions was uncertain, as was also the aggregate of the sums which might be drawn from the treasury. The act did not specify any maximum within which the allowances were to be confined, and no provision was made in the general appropriation bill. Hence the total money which might be drawn from the state treasury was not specific, but was not as uncertain as it is here.

The language in section 3 that "the members of the commission shall be allowed actual expenses of travel incurred in traveling upon the official business of the commission" is not accompanied by any limitation of the travel to this state. or elsewhere, and is broad enough, if enforced, without any maximum amount being named by the legislature, to allow the members of the commission to travel around the world ad libitum on the business of the commission at the expense of the state. This indefiniteness does not exist in regard to the salary, which has been fixed by the legislature, and which is certain as to the amount and as to the person to whom, and the time when, it is to be paid.

As section 3 of the act creating the commission states that

Opinion of the Court-Talbot, C. J.

"the chairman shall receive as compensation for his services to be paid out of the state treasury the sum of two thousand five hundred dollars per annum, payable in equal monthly installments upon the first day of each and every month," and the act of March 8, 1879, that all officers whose salaries are fixed by law shall be entitled to receive the same on the first day of each calendar month, and that the state controller is authorized and directed to draw his warrant and the state treasurer to pay the same, it is clear that petitioner is entitled to his salary. No other construction would be in harmony with the plain meaning and directions of these sections. As the legislature has named the amount of the salary and directed the issuance of warrants and its payment monthly out of the state treasury, any additional act providing for the accomplishment of these purposes which are already shown to have been intended is not required and would be an unnecessary repetition.

Section 6 of "An act relating to the duties of the state controller," approved February 24, 1866 (Stats. 1866, p. 97, c. 43), directs that no warrant shall be drawn on the treasurer except there be an unexhausted, specific appropriation by law to meet the same. It is not contended that the fund is exhausted. It is evident that there is an appropriation by law for the salary of the chairman of the commission because the amount and time and manner of payment are specific and certain, but not so in regard to the traveling expenses. If the section relating to the duties of the controller is in conflict, which is not apparent, it would be controlled by the later acts fixing the salary of the petitioner as a state officer and directing the controller to draw his warrants in favor of state officers for their salaries on the first of each month.

Submission of the case was made upon demurrer as upon the merits.

It is directed that a writ of mandate issue commanding the defendant, as state controller, to draw his warrant upon the state treasurer in favor of the plaintiff for the salary claimed, but not for the traveling expenses.

Points decided.

[No. 1720.]

THE STATE OF NEVADA, RESPONDENT, v. CARSON AND COLORADO RAILWAY COMPANY, A CORPORATION, ET AL., APPELLANTS.

1. TAXATION-INCREASING VALUATION-STATUTES CONSTRUED. The act of March 16, 1901, p. 61, c. 50, sec. 1, as amended by Stats. 1903, p. 95, c. 69, requires the state board of county assessors to establish a valuation of railroads, etc., every January, and provides that the county boards of equalization may only equalize taxes where a valuation has not been fixed by the state board. Under Comp. Laws, 1084, between the date of levy of taxes and September 1st the county assessor must ascertain the value, etc., of, and list and assess, all taxable property. Under section 1081 all property in the state is taxable except, etc. Section 1079 makes every tax a lien against the property assessed, and provides a lien shall attach upon land for personal taxes upon the day taxes are levied in each year, on all property then in the state, and all other property whenever it reaches the state. Held, that all property must be assessed which comes into existence either as additions or otherwise between the first Mondays in March and September of each year, if it has not been taxed for that year; that, if property assessed by the state board in January enhances in value because of betterments before the first Monday in September, the assessor should assess the property as assessed by the board plus the increased valuation, and, if he fails to do so, the county board may equalize the property at its full cash value, the inhibition upon that board equalizing the valuation of property fixed by the state board applying only when such property remains in substantially the same condition, and so a county board could increase the valuation of railroad property, where between the date when the state board fixed the valuation and the date of the county board's meeting in September part of the road was changed from narrow to broad gage.

2. SAME-DEFENSES. If, in a suit to recover disputed taxes, defendant desires to raise an issue of excessive valuation, he should prepare his answer under Comp. Laws, 1124, providing what defenses may be set up in tax suits.

3. SAME-NOTICE-DIRECTORY PROVISION. Comp. Laws, 1098, providing for the publication of notice of the increased valuation of taxable property by a board of equalization, is merely directory.

4. APPEAL-REVIEW-CONCLUSIVENESS OF FINDING. Under the rule that a finding supported by evidence will not be disturbed, the trial court's findings in a tax suit that the property taxed was defendant's and that the proper notices were given a railroad company of an increased valuation of its property is conclusive.

5. TAXATION-DEFENSES-PLEADING. Since Comp. Laws, 1124, in defining what defenses may be made in tax suits, when title to the property is denied, provides that defendant must deny all interest at the time of assessment, a defense that the property belonged to another when the county board of equalization increased the valuation was not available where defendant failed to allege that at the time of assessment the property was not its property.