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«OFFICIAL OPINIONS OF THE ATTORNEY GENERAL - 1918 138. State Assayer and InspectorFees. The State Assayer and Inspector cannot charge less than 25 ...»

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138. State Assayer and Inspector--Fees.

The State Assayer and Inspector cannot charge less than 25 cents per ton on any shipment

in cases of fifty tons under Stats. 1917, p. 450.

CARSON CITY, January 9, 1918.

HON. FRANCIS CHURCH LINCOLN, State Assayer and Inspector, Reno, Nevada.

Dear Mr. Lincoln: Your letter of the 5th instant duly received. You ask whether it is possible, in shipments in excess of eighty tons, shipped in two cars but sampled as one lot, to impose a definite maximum charge lower than 25 cents per ton.

The statute creating your office (Stats. 1917, p. 450) provides for a charge of 25 cents a ton for services rendered by you, except in cases where less than fifty tons of ore daily are received and sampled. In the latter event, the shipper is required to pay the actual costs of the inspection and sampling.

In view of these very definite provisions, it is our opinion that you cannot charge less than 25 cents per ton on any shipments in excess of fifty tons.

Yours very truly, GEO. B. THATCHER, Attorney-General.

By WM. McKNIGHT, Deputy.

139. Public Schools--State Board of Vocational Education--State Director of Vocational Education.

Under Stats. 1917, p. 398, the State Board of Vocational Education has the right to pay the salary and traveling expenses of the State Director of Vocational Education from the appropriation made in said Act.

CARSON CITY, January 9, 1918.

HON. JOHN EDWARDS BRAY, Secretary, State Board of Vocational Education, Carson City, Nevada.

Dear Mr. Bray: We are in receipt of your recent letter wherein you ask an opinion upon

the following questions:

Has the State Board of Vocational Education the right to pay the salary of the State Director of Vocational Education under the Smith-Hughes Act from the $30,000 appropriation made by the Legislature of Nevada in 1917?

Has the State Board of Vocational Education the right to provide traveling expenses and office expenses for said State Director of Vocational Education from appropriation of $30,000 in said Act of the last Legislature?

The last Legislature (Stats. 1917, p. 398) appropriated the sum of $30,000 as a vocational educational fund, to be available in the biennial period, beginning July 1, 1917-For the preparation of teachers, supervisors, and directors of agricultural subjects and teachers of trade and industrial and home economics subjects; for the salary of teachers of trade and industrial and home economics subjects, and for the salary of teachers,supervisors, and directors of agricultural subjects, so as to receive the full benefit of the said Act of Congress.

The State Director of Vocational Education will be engaged in supervising vocational work in this State and aiding as a teacher in such phases of the work as may be necessary. By joint agreement on the part of the Federal Board of Vocational Education and the State Board of Vocational Education, the salary and expenses of the State Director, who is a supervisor and a teacher, shall be paid from state funds.

The language of the Act in question is broad enough to include both the salary and expenses of such Director.

Both of the questions which you ask should, therefore, be answered affirmatively.

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By WM. McKNIGHT, Deputy.

140. State Railroad Commission--Public Service Commission--Fees.

The State Railroad Commission and Public Service Commission cannot increase the appropriations made for the support of the said Commissions by adding thereto the amount in money received by the Treasurer in payment for transcripts of proceedings.

CARSON CITY, January 9, 1918.

MISS E. E. STONE, Assistant Secretary, Railroad Commission and Public Service Commission, Carson City, Nevada.

Dear Miss Stone: We wish to acknowledge receipt of your letter of the 8th instant, in which you ask whether the appropriations made for the support of your Commission should be increased by the amount of any money received by the State Treasurer, in payment of transcripts of proceedings. The law providing for the sale of such transcripts (Stats. 1915, p. 450) reads as


–  –  –

There is nothing in this language indicating the intention on the part of the Legislature to have the Commission appropriations increased by such receipts. The statute, by the use of the word “fund,” plainly indicates the lack of such intention. “Fund” and “appropriation” are not synonymous terms. A distinction is of necessity made between them in the statutes (Stats. 1915, p. 95; Marshall v. Dunn, 69 Cal. 223.) The purpose of the Legislature was apparently to designate the fund into which the receipts should be apportioned. This purpose is plainly shown by the statute in question, and is further shown by the language used in the last general appropriation bill. (Stats. 1917, pp. 217

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By WM. McKNIGHT, Deputy.

141. Employer and Employee--Liens--Mines and Mining.

Section 2221, Rev. Laws, was amended by Stats. 1917, p. 435, so as to require, in addition to posting the notice therein mentioned, the making of an affidavit of such posting and the recording of the same with the County Clerk.

If the labor performed or the material furnished for which a lien is claimed was performed or furnished after March 27, 1917, the date of said amendment, the posting of a notice alone would not be a sufficient compliance with the law. If such labor was performed or material furnished thereafter, and no copy of the notice was filed with the County Recorder, the property would be subject to a lien.

CARSON CITY, January 11, 1918.

HON. ROBT. F. COLE, Industrial Commissioner, Carson City, Nevada.

Dear Sir: I am in receipt of your favor of the 17th ultimo, enclosing copy of notice which was posted on certain mining claims belonging to Mr. Fred Toberg of Crescent, Nevada.

It seems that certain parties who leased the property from Mr. Toberg failed to pay for certain labor performed thereon, and for certain materials furnished.

You inquire whether or not the property can be held in payment for such labor and materials. You state that a notice was posted on the dump of the claim, in a box, and on the outside and inside of the building.

In my opinion, the mining claims on which this labor was performed, and for which the material was furnished, cannot be held for payment thereof, for the reason that the owner of the claims has complied fully with the provisions of section 9 of an Act entitled “An Act to secure liens to mechanics and others,” etc., being Rev. Laws, 2221, if the work was performed and materials supplied prior to March 27, 1917.

On said date said section 9 was amended providing the following: “and also shall, within five days after such posting, file a duplicate copy of said posted notice with the Recorder of the county where such land or building is situated, together with an affidavit attached thereto, showing such posting and original posting. Such filing shall be prima facie evidence of such posting.” Therefore, if the labor was performed and material furnished after March 27, 1917, the posting of the notice alone would not be a sufficient compliance with the law. If this work was done thereafter, and no copy of the notice filed with the County Recorder, the property in question would be subject to a lien.

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142. Mothers’ Pension Law.

The clause “or are dependent upon their own efforts for maintenance of their children” in the mothers’ pension law (Stats. 1915, p. 151) is a part of the qualifications preceding which entitle the mother to partial support by the county.

–  –  –

HON. E. P. CARVILLE, District Attorney, Elko, Nevada.

Dear Mr. Carville: Since my last return from Elko Mr. Thatcher has been away so much that only today was I able to ask him for his interpretation of section 1 of the mothers’ pension law (Stats. 1915, p. 151). He holds that the phrase, “or are dependent upon their own efforts for maintenance of their children,” is a part of the qualifications preceding which entitles the mother to partial support by the county. He further holds that the object and intent of the Act is to maintain the home and keep the mother with the children, and that the mother is not obliged to go away from home to seek work, if such procedure would leave the children without the mother’s protection.

–  –  –

By EDW. T. PATRICK, Deputy.

143. Public Schools--Evening or Night Schools.

The appropriation of $10,000 provided in section 4 of the Act to provide for the establishment of evening schools (Stats. 1917, p. 354) is to be taken from the General Fund of the State.

–  –  –

HON. JOHN EDWARDS BRAY, Superintendent of Public Instruction, Carson City, Nevada.

Dear Sir: We are in receipt of your letter, in which you refer us to the law establishing night schools, which provides that a designated sum be appropriated from the “State School Fund.” You state that no part of such fund can be used for educational purposes and ask-

–  –  –

The law in question (Stats. 1917, p. 354) provides for the establishment of evening schools. The State is required to pay not to exceed a specified amount for the salary of each teacher, and for the purpose of paying such salaries-The sum of ten thousand dollars is hereby appropriated from the State School Fund to carry out the provisions of this Act; and claims against said appropriation shall be paid as other claims against the State are paid upon certificate of the State Superintendent of Public Instruction.

The Legislature having previously established and authorized the keeping of accounts with the “State Permanent School Fund” and the “State Distributive School Fund” (Rev. Laws, 3373, 3375; Stats. 1915, p. 95), there was not, at the time of the enactment of this statute, any fund known as “State School Fund.” It is apparent, therefore, that the Act in question designated a wrong fund; or, rather, a fund that was not in existence.

But it does not follow that the appropriation is null and void, if it can otherwise be determined what fund the money appropriated is to be drawn from. (State v. Westerfield, 23 Nev.

468, 473.) In the cited case it was held that the salary of a teacher at the Orphans’ Home should be paid from the General Fund, although the statute authorizing the expenditure designated the General School Fund. There the money could not be paid from the fund designated by the Legislature, because of constitutional restrictions; while here the money cannot be paid from the named fund, because there is no such fund.

It follows, in our opinion, that the appropriation for the salaries of teachers in evening schools may be paid from the General Fund.

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144. County Clerk’s Fees--State Orphans’ Home.

The County Clerk is not entitled to any fee in the proceeding leading to the commitment under section 4098, Rev. Laws, of half-orphans to the State Orphans’ Home.

–  –  –

HON. G. J. KENNY, District Attorney, Fallon, Nevada.

Dear Sir: Some time since you wrote for an opinion as to whether the Clerk of your court was entitled to any fee on a petition filed under the provisions of Rev. Laws, 4098.

Section 4098 is section 12 of the original Act for the government and maintenance of the State Orphans’ Home.

Amendments thereto of 1913 and 1915 were for the purpose of enlarging the scope of the Home and permitting the admission therein of children who otherwise could not be received.

Section 7 of said Act (Rev. Laws, 4093) provides the procedure of admission to the

Home and the last sentence of said section is as follows:

The expenses of proceedings herein provided for and of the transportation of orphans to the Home shall be a county charge.

There is nothing in section 12, or the amendments thereto, which changes this rule, and I am, therefore, of opinion that for the services rendered in such proceedings your Clerk is not entitled to any fee.

–  –  –

145. Revenue--Taxation--Patented Mines--Exemption.

The affidavit contemplated for the exemption from taxation of patented mines in the Act of 1915, p. 316, requires the filing of such affidavit within the calendar year for which such exemption is claimed.

–  –  –

HON. G. J. KENNY, District Attorney, Fallon, Nevada.

Dear Sir: I am in receipt of your favor asking interpretation of chapter 206 of the Statutes of 1915, being the Act to provide for the assessment of patented mines.

It appears from your letter that on July 25, 1917, the owner of a certain patented mine sent your County Clerk an affidavit showing that between April 1, 1916, and June 30, 1916, the labor specified in said Act was performed and prayed that the assessment against his property be stricken from the roll.

In my opinion the County Board of Equalization could not act upon this petition, for the reason that the whole purport of the Act seems to contemplate that it can only strike from the rolls patented mines on which the $100 worth of labor was performed during the calendar year. I am confirmed in this opinion by the provisions of section 5 of said Act, which provides for an affidavit from the owner of his intention to perform such labor before the expiration of the then current calendar year, and on filing a bond for the performance of such labor.

The law of 1913 was defective in that it did not allow credit for the performance of such annual labor as might have been done after the meeting of the Board of Equalization and before the expiration of the then calendar year. To meet this difficulty, the law of 1913 was repealed and the present Act was passed by the Legislature of 1915.

–  –  –

146. Criminal Practice--County Commissioners--Extradition--Misdemeanors.

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