Akley v. Perrin

• Decision Date: 16 January 1905
• Citation: 79 P. 192,10 Idaho 531
• Parties: ACKLEY v. PERRIN
• Court: Idaho Supreme Court

79 P. 192

10 Idaho 531

ACKLEY v. PERRIN

Supreme Court of Idaho

January 16, 1905

BOARD OF STATE PRISON COMMISSIONERS-ACTION BY MAJORITY OF MEMBERS-NOTICE OF MEETING.

1. The board of state prison commissioners as created by section 5 of article 10 of the constitution is granted the "control, direction and management of the penitentiaries of the state," and under such grant of power and authority they may meet at such times as they deem necessary.

2. A majority of the officers constituting such board may hold a meeting and transact such business as the board is authorized to transact.

3. A meeting of the state prison commissioners can be lawfully held by a majority of the board without giving notice to a member of the board who is at the time of calling and holding the meeting beyond the jurisdiction of the state.

(Syllabus by the court.)

ORIGINAL application by D. W. Ackley, warden of the state penitentiary, to compel the defendant to deliver to plaintiff possession of the state penitentiary, together with the inmates thereof, the keys, books and property belonging thereto. Writ granted.

Writ issued. No costs awarded.

John A Bagley, Attorney General, and Wood & Wilson, for Petitioner file no brief.

Henry Z. Johnson, Charles S. Kingsley and A. A. Fraser, for Defendant.

This is a proceeding to determine the right to exercise the office of warden of the state penitentiary. Under the statute the warden shall be appointed by the board of state prison commissioners and holds his office during the pleasure of the board. (First Sess. Laws, p. 22, sec. 4.) This board under the constitution, article 4, section 18, is composed of the governor. Secretary of State and attorney general, of which board the governor is chairman. (Second Sess. Laws, p. 155 amending First Sess. Laws, p. 22, sec. 2.) There is no provision of the statute that in the absence of one member a majority thereof may act. Whatever power, therefore, was conferred by the legislature was conferred upon the three persons named as a body, and to them, as such, was delegated whatever power was given. Whatever action, therefore, they take, must be taken by them as a board. In other words, they act as an entirety. And should a majority assume to do the business of the board in the absence of the other members, their action would not be good under all of the decisions, unless the majority were, by the terms of the statute from which they derived their power, expressly authorized to act. (Schwanbeck v. People, 15 Colo. 64, 24 P. 575, 576.) In this connection it is significant that the board of state prison commissioners is the only state board that the legislature has not seen fit to delegate authority to a majority thereof to act. In the cases of the board of pardons, the board of equalization, the board of examiners, the board of land commissioners, the board of regents, the boards of trustees of the normal schools, and the soldiers' home, and, lastly, the boards of county commissioners, a majority are expressly authorized to act. Again, the statute prescribes that the board of prison commissioners shall meet quarterly; and when in special session the time and business thereof. At no other time can this board meet under the authorities, unless all are voluntarily present, or if a majority are present, that notice has been served on the absent member, or at least an attempt has been made to serve him with notice of the proposed meeting. Especially is this true when the board attempts to meet at a time other than the time prescribed for meeting by the statute. (People v. Carver, 5 Colo. App. 156, 38 P. 334.) The record in this case shows affirmatively that the meeting herein was at a time other than prescribed by statute and that no notice was given, or honest or reasonable effort made to give notice to the absent member. The record also shows that the meeting was not an adjourned meeting of a regular meeting. That being so, it follows as a necessary result that their acts which they assumed to perform were unauthorized and void. (Jackson v. Collins, 41 N.Y.S. 590, 16 N.Y.S. 651, 653; In re Bradley, 49 N.Y.S. 530, 21 N.Y.S. 167; School Dist. v. Bennett, 52 Ark. 511, 13 S.W. 132, 133, adhered to in Burns v. Thompson, 64 Ark. 489, 43 S.W. 499; also, School Dist. No. 49 v. Adams, 69 Ark. 159, 61 S.W. 794; Dunn v. Sharpe, 4 Idaho 98, 35 P. 842; Conger v. Board of Commrs., 4 Idaho 740, 48 S.W. 1064; People v. Parker, 3 Neb. 409, 19 Am. Rep. 634-637; State v. Graham, 26 La. Ann. 568, 21 Am. Rep. 551.)

AILSHIE, J. Sullivan, C. J., concurs. STOCKSLAGER, J., Dissenting.

OPINION

AILSHIE, J.

This is an application for a writ of mandate to C. S. Perrin to compel him to deliver up the possession of the Idaho state penitentiary, together with the inmates thereof, the keys, books, moneys and property thereunto belonging to the plaintiff, Ackley. The application is based on the proceedings of the board of state prison commissioners had on the twenty-first day of November, 1904. A copy of the record of their proceedings is attached to the petition. The answer of the defendant puts in issue the regularity and legality of the meeting so held and the proceedings had thereat. It admits that the proceedings referred to in the complaint were had, but denies that the action taken by the attorney general and Secretary of State were acts of the state prison board, or that they constituted such board at the time and in the manner they assumed to act. This matter is presented on a motion for judgment on the pleadings. It is conceded that if the proceedings were the proceedings of the board of state prison commissioners, that the removal of the warden was legal. It is unnecessary for us to go into a detailed statement of the contentions of both parties.

By section 5, article 10 of the state constitution, the governor, Secretary of State and attorney general are constituted a board to be known as the state prison commissioners, and are given "the control, direction and management of the penitentiaries of the state." It also provides that "the governor shall be chairman and the board shall appoint a warden who may be removed at pleasure." It will thus be seen that the constitution confers on this board the management and control of the state penitentiary. That being true, the legislature has not the power to take from that board the management and control of that institution, or make any rules and regulations for the government of the board that would in any way interfere with the efficient management and control of that institution. The authority to legislate in aid of the full and complete exercise of this power is clearly recognized by section 18 of article 4 of the constitution, but the right conferred upon the legislature by this section cannot be employed to diminish or abridge any of the powers conferred by section 5 of article 10.

The only question presented by the pleadings for our consideration is whether or not the action of the Secretary of State and attorney general had at the time and in the manner they are shown by the pleadings to have acted is in law the legal action of the board of state prison commissioners. Article 10 of the constitution is dealing with "Public Institutions," and while section 5 makes no provision as to the time of meeting nor the manner of calling meetings, nor the manner of exercising the "control direction and management" delegated to them, it is significant that section 6, immediately following this provision, provides for directors of the insane asylum, and in prescribing the powers of that board uses the same language, namely, that they shall have the "control, direction and management of the asylum," and concludes the sentence with the provision that it shall be exercised under such regulations as the state legislature may provide. This provision following immediately after the creation and granting of authority to the board of state prison commissioners implies to my mind that the framers of the constitution did not mean to authorize the legislature to in any way abridge or curtail the exercise of any of the powers granted to the board of state prison commissioners. The first legislature that convened after the adoption of the constitution, by act of February 3, 1891, enumerated a large number of duties to be performed by the prison board, and in the same act, by section 6 thereof, provided that the board should hold quarterly meetings but nowhere in the act did they specify any date on which meetings should be held. It is true that by section 13 of that act certain things are required to be done by the board on the first Monday in December, and presumably at a meeting, but a meeting as such is not mentioned. This act enumerates duties to be performed which of necessity require that meetings be held much oftener than quarterly, and it is our opinion that the legislature in requiring quarterly meetings to be held by the board had no intention or purpose of limiting the power of the board to these meetings only. The board of state prison commissioners is a board created by the constitution and selected by the people every two years. They are responsible to no appointive power, but are accountable directly to the people, and it seems to us that this is one of the controlling reasons why the framers of the constitution left the exercise of the powers granted to this board to their judgment and discretion. While the legislature have the undoubted right to point out a method of exercising these powers and impose special duties upon them, we are satisfied that the legislative department of the government would have no power or authority to limit or in any way interfere with the full and complete exercise of the powers and duties conferred by the...