Opinion of the Court-Coleman, C. J.

is no specific appropriation against which the same can be lawfully drawn. State v. LaGrave, 23 Nev. 24, 120, 125, 126; State v. Eggers, 33 Nev. 535, 539.

By the Court, COLEMAN, C. J.:

This is an original proceeding to obtain a writ of mandate, directing the state controller to issue his warrant in payment for certain services rendered in pursuance of an act of the legislature (chapter 213, Stats. 1919, p. 387) to provide for cooperative agricultural and home economics extension work in accordance with the terms of the act of Congress known as the SmithLever act (Comp. St., secs. 8877a-8877h). Section 2 of our statute authorizes the organization of county farm bureaus as a preliminary step in the carrying on of the work contemplated, and section 3 thereof reads in part as follows:

"The board of directors of the county farm bureau and the director of agricultural extension shall prepare an annual financial budget covering the county's share of the cost of carrying on the cooperative extension work in agriculture and home economics provided for in this act, together with the share of each of all other cooperating agencies; provided, that the county's share shall not exceed a sum equal to the proceeds of one cent of the county tax rate, which, if adopted by a majority vote of said bureau at a regularly called meeting, shall be filed with the board of county commissioners of such county, which said board shall include the county's share thereof in the budget of county expenditures for such year and shall annually, at the time of levying taxes for county purposes, levy a county tax, at a rate not exceeding one cent on each hundred dollars of taxable property, to provide such fund."

Section 4 provides:

66 * * * There is hereby annually appropriated, out of any money in the state treasury not otherwise appropriated, a sum equal to the total appropriations of the

Opinion of the Court-Coleman, C. J.

several counties for the support of county agricultural and home economics extension work as provided in section three of this act, but shall not be greater in any year than the proceeds of one cent of the state tax rate; * * * provided, that a certified copy of each such cooperative county budget shall be filed with the board of regents, the state board of examiners and the state controller within ten days after date of filing with the board of county commissioners."

It appears from the petition in this case that indebtedness has been incurred pursuant to the statute above mentioned, and that claims have been made and presented to and approved by the proper authorities. The only question which is raised upon this hearing is as to whether or not the statute in question makes an appropriation for the payment of said claims. No appropriation was made by the legislature in the general appropriation bill to meet the expenses incurred under the statute in question. It is conceded by the respondent that the purpose sought to be attained by the statute is a worthy one.

Section 19, article 4, of our constitution provides: "No money shall be drawn from the treasury but in consequence of an appropriation made by law."

The rule requiring that no claim against the state can be paid until an appropriation has been made therefor by the legislature had its origin in England, and grew out of the abuse by the sovereign of the privilege of expending the public funds. Parliament, with a view of limiting the amount which the sovereign might pay out of the public funds, adopted a rule that no money should be paid out except in pursuance of an appropriation therefor. Hallam's Const. Hist. of England, Ed. 1862, c. 15, p. 555; Creasy on English Const. p. 293. The idea thus originating was carried into the constitution of the United States and of most of the states of the Union. Except as limited by the constitution, the legislature has plenary power in authorizing the expenditure

Opinion of the Court-Coleman, C. J.

of public funds for public purposes, and, from a reading of the section of the constitution quoted, only one condition is imposed upon the legislature, viz, the making of an appropriation of money in the treasury to pay a claim. The act in question authorizes the incurring of the indebtedness; does it appropriate the money to pay it?

It is said in behalf of respondent that to constitute an appropriation a specific amount must be set aside for the purpose mentioned, so that the state controller can comply with section 6 of an amendatory act of the legislature of 1915 (chapter 76, p. 95), which provides:

"He shall draw all warrants upon the treasury for money, and each warrant shall express, in the body thereof, the particular fund out of which the same is to be paid, the appropriation under which the same is drawn, and the nature of the service to be paid, and no warrant shall be drawn on the treasury except there be an unexhausted specific appropriation, by law, to meet the same."

Where there are two acts upon a given subject, the rule is that in case they can be harmonized both will stand; but, if the statute last enacted does not violate a constitutional inhibition but is inconsistent with the prior act, the latter act will control. But we need not, in inquiring into the constitutionality of the act in question, determine whether the two acts are inconsistent. In fact, the argument is more likely to appeal to our sense of what should be the law, rather than to influence us in construing the law. But under the particular facts existing in this case, there is no force to the contention, even if the amendatory act of 1915 controls, for the reason that prior to the time of the filing of the petition in this matter the controller had the information which enabled him to tell to a penny the amount to be credited to the fund in question. Section 3618, Revised Laws, 1912, provides that the board of county commissioners of each county in the state shall, on the first Monday in March of each year, levy taxes

Opinion of the Court-Coleman, C. J.

for county purposes; and, as shown, section 3 of the home economics act provides for the method of raising each county's share, and requires the filing with the board of county commissioners of the several counties, before the first Monday in March of each year, of the necessary data as a basis for the county levy for that purpose; and section 4 of the same act provides that a certified copy of each such county budget shall be filed with the controller within ten days after such data shall have been filed with the board of county commissioners, which provision, it is admitted, has been complied with. It inevitably follows that not later than ten days after the first Monday in March, 1920, the respondent knew the exact amount which should be set aside to pay the indebtedness authorized by the home economics act.

It is true that the act in question does not name a given amount as a sum which was appropriated to pay the indebtedness, but the intention of the legislature to incur the indebtedness, and to have it paid out of the state treasury, is made clear, and a method is provided whereby the exact amount to be expended in pursuance of the act may be ascertained not later than ten days after the first Monday in March of each year. In our opinion, this is sufficient, for that is certain which is capable of being made certain. Mobile & Ohio R. Co. v. Tennessee, 153 U. S. 497, 14 Sup. Ct. 968, 38 L. Ed. 793.

That this is the general rule of law cannot be doubted, and in construing appropriation statutes the general rule has been adhered to. State ex rel. Ledwith v. Brian, 84 Neb. 30, 120 N. W. 916; Town of Highgate v. State, 59 Vt. 39, 7 Atl. 898; People ex rel. v. Miner, 46 Ill. 389; 36 Cyc. 892.

There is nothing in State v. LaGrave, 23 Nev. 25, 41 Pac. 1075, 62 Am. St. Rep. 764, in conflict with the views we have expressed. The statute in question in that case provided no method whereby it could be ascertained what amount should be set aside to meet the obligations which might be incurred under the act.

Points decided

Conceding, as he does, the meritorious purpose of the act in question, nevertheless respondent felt that fidelity to duty impelled his attitude in this matter.

For the reasons given we are of the opinion that a peremptory writ of mandamus should issue, commanding the respondent to draw his warrant as prayed. It is so ordered.

[No. 1900]

HERRING - HALL - MARVIN SAFE COMPANY (A CORPORATION), APPELLANT, v. LETSON BALLIET, RESPONDENT.

[145 Pac. 941; 190 Pac. 76]

ON REHEARING

1. COSTS OFFER OF JUDGMENT AS TO UNDISPUTED PART OF CLAIM MAKES COST DEPENDENT UPON RESULT OF DISPUTED PART.

When plaintiff unites in the same action a claim that is not disputed with one that is, defendant may remove from the controversy the undisputed claim by offer of judgment, as authorized by Comp. Laws, 3470, and thus make the subsequent costs of the litigation depend upon the result of the litigation in regard to the disputed claim.

2. COSTS OFFER OF JUDGMENT NEED NOT INCLUDE COSTS.

Offer of judgment under Comp. Laws, 3470, need not include costs.

3. COSTS-OFFER OF JUDGMENT DOES NOT AFFECT COSTS ACCRUING PRIOR TO OFFER.

Although plaintiff failed to obtain a more favorable judgment than offered by defendant, plaintiff was entitled to accrued costs up to the time of the making of the offer.

4. APPEAL AND ERROR-WHETHER JUDGMENT "MORE FAVORABLE" THAN THAT OFFERED, AS AFFECTING COSTS, WITHIN DISCRETIONARY DETERMINATION OF COURT OF JURISDICTION.

Whether judgment recovered was "more favorable" than judgment offered by defendant, within the meaning of Comp. Laws, 3470, as to offer of judgment as affecting costs is to be determined by the tribunal having jurisdiction of the matter, and the exercise of the district court's sound discretion in this respect will not be disturbed, although the supreme court is not without power to correct abuse thereof.