Blaine County Investment Co. v. Gallet

• Decision Date: 20 February 1922
• Citation: 204 P. 1066,35 Idaho 102
• Parties: BLAINE COUNTY INVESTMENT COMPANY, a Corporation, Plaintiff, v. E. G. GALLET, Auditor of the State of Idaho, Defendant
• Court: Idaho Supreme Court

204 P. 1066

35 Idaho 102

BLAINE COUNTY INVESTMENT COMPANY, a Corporation, Plaintiff, v. E. G. GALLET, Auditor of the State of Idaho, Defendant

Supreme Court of Idaho

February 20, 1922

LEGISLATIVE APPROPRIATION-REQUIREMENTS OF VALID APPROPRIATION-AUTHORIZED MAXIMUM NECESSARY-INDEFINITE AUTHORIZATION TO STATE AUDITOR TO DRAW WARRANTS ON GENERAL FUND INSUFFICIENT.

1. Under art. 7, sec. 13, of the state constitution, an appropriation is authority of the legislature given at the proper time and in legal form to the proper officers to apply a specified sum from a designated fund out of the treasury for a specified object or demand against the state.

2. The legislative power to appropriate money from the treasury of the state cannot be delegated. If the exact amount of dis- bursements to be provided for cannot be ascertained in advance, the legislative act must itself fix the maximum amount authorized to be expended for a specified purpose.

3. C S., sec. 1032, provides that the department of reclamation shall, at the request of the district judge, in a water adjudication suit, make an examination and survey of the stream in question, and present an itemized statement of the expense thereof to the state auditor, and "Said auditor shall present the same to the state board of examiners, and if allowed by them in whole or in part, the auditor shall draw warrants on the general fund in favor of the parties entitled thereto, and the treasurer shall pay the same out of said fund." Held, that the legislature did not by this act appropriate the entire general fund for the purpose specified, that it did not in fact appropriate any definite portion of that fund, and that no appropriation of money from the state treasury was made by said section.

Original petition for Writ of Mandate. Demurrer sustained and petition dismissed.

Demurrer to the petition sustained, and the petition dismissed.

Peterson & Coffin, for Plaintiff.

The constitution does not require that the appropriation shall be for a fixed sum, and whatever the state constitution does not prohibit, the legislature may do. (People v. Miner, 46 Ill. 384, 386.)

In the absence of such a constitutional limitation, the legislature may appropriate money for given objects without specifying the amount or fixing a maximum limit. (State v Anderson, 33 S.D. 574, 146 N.W. 703; Highgate v. State, 59 Vt. 39, 7 A. 898; Campbell v. Board of Commissioners, etc., 115 Ind. 591, 18 N.E. 33; Henderson v. Board of Commissioners, 129 Ind. 92, 28 N.E. 127, 13 L. R. A. 169; State v. Henderson, 199 Ala. 244, 74 So. 344, L. R. A. 1917F, 770; State Board of Charities, etc., v. Hays, 190 Ky. 147, 227 S.W. 282; Bosworth v. Harp, 154 Ky. 559, Ann. Cas. 1915C, 277, 157 S.W. 1084, 45 L. R. A., N. S., 692; Norcross v. Cole, 44 Nev. 88, 189 P. 877.)

Roy L. Black, Attorney General, and Dean Driscoll, First Assistant, for Defendant.

The statutory direction to pay is not an appropriation within the meaning of art. 7, secs. 11 and 13 of the constitution, for it contains no limit by fund or amount. (36 Cyc. 892; Ann. Cas. 1915A, 1241; Kingsbury v. Anderson, 5 Idaho 771, 51 P. 744; Kroutinger v. Board of Examiners, 8 Idaho 463, 69 P. 279; Epperson v. Howell, 28 Idaho 338, 154 P. 621; Herrick v. Gallet, ante, p. 13, 204 P. 477; State v. Eggers, 29 Nev. 469, 91 P. 819, 16 L. R. A., N. S., 630; State v. Moore, 50 Neb. 88, 61 Am. St. 538, 69 N.W. 373; State v. La Grave, 23 Nev. 25, 62 Am. St. 764, 41 P. 1075.)

While a definite limit is required in appropriation acts it is not necessary that this be by specific amount or by dollars and cents. (Holmes v. Olcott, 96 Ore. 33, 189 P. 202; People v. Miner, 46 Ill. 384; State v. Anderson, 33 S.D. 574, 146 N.W. 703; Norcross v. Cole, supra; Atkins v. State Highway Department (Tex. Civ.), 201 S.W. 226.)

BUDGE, J. Rice, C. J., and McCarthy, Dunn and Lee, JJ., concur.

OPINION

BUDGE, J.

In October, 1920, the plaintiff instituted an action in the district court for Butte county to determine and adjudicate the priority of rights to the use of water from the Little Lost River and its tributaries, and on November 5, 1921, the cause being at issue, upon application of plaintiff and after due notice, the district judge made and entered an order pursuant to C. S., sec. 7032, requesting the Department of Reclamation to make an examination and survey of the streams involved, and to make and file with the clerk of the court a report thereof. Pursuant to this order, the Commissioner of Reclamation on November 14, 1921, appointed one Bickel, a special deputy, to conduct the survey, and the latter on November 16, 1921, preparatory to making the field survey, examined the records in the office of the department, and submitted to the defendant, as State Auditor, a bill, approved by the commissioner, for such services. On December 3, 1921, the defendant notified the commissioner of his refusal to certify said bill to the State Board of Examiners upon the ground that there is no appropriation for such expenses, whereupon this proceeding was begun for a peremptory writ of mandate directed to and commanding the defendant as State Auditor to certify said bill to the State Board of Examiners as provided in C. S., sec. 7032.

The defendant has filed a general demurrer to the petition, by which two questions are raised, viz., first: Is there an appropriation out of which the claim in question can be paid? and, second: If there is such an appropriation, will the payment of such claim constitute the loaning of state funds and credit to private persons and corporations? The determination of the first question, however, will dispose of this case.

Art. 7, sec. 13, of the constitution provides that: "No money shall be drawn from the treasury, but in pursuance of appropriations made by law."

It is admitted that if any appropriation exists out of which the claim here involved can be paid, it is contained in C. S., sec. 7032, and particularly in the portion italicized below. The section, so far as material to this case, reads as follows:

"Whenever suit shall be filed in the district court for the purpose of adjudicating the priority of rights to the use of water from any stream in the state, and before such adjudication is made the judge of such court shall request the department of reclamation to make an examination of such stream, . . . . in the manner provided in section 5604, . . . .

"Whenever the department of reclamation shall make such examination at the request of the court or the judge thereof, it shall make out, in duplicate, an itemized statement showing the cost of making such examination and survey, specifying the amount of each item for labor, supplies and other expenses, and the name of the person or company entitled to payment therefor, and shall verify the same . . . ., and shall forward such statement to the state auditor. Said auditor shall present the same to the state board of examiners, and if allowed by them, in whole or in part, the auditor shall draw warrants on the general fund in favor of the parties entitled thereto, and the treasurer shall pay the same out of said fund. The sum so allowed by the state board of examiners shall be forthwith certified by the state auditor to the judge and clerk of the court in which said suit shall be pending, and the same shall constitute a part of the costs and disbursements in said cause. . . ."

It will be noted that sec. 13 of art. 7 of the constitution does not define an appropriation nor specify when or how an appropriation by law shall be made, and these important matters are, therefore, proper subjects for judicial interpretation.

An appropriation in this state is authority of the legislature given at the proper time and in legal form to the proper officers to apply a specified sum from a designated fund out of the treasury for a specified object or demand against the state. (Menefee v. Askew, 25 Okla. 623, 107 P. 159, 27 L. R. A., N. S., 537; Herrick v. Gallet, ante, p. 13, 204 P. 477.)

See also, Kingsbury v. Anderson, 5 Idaho 771, 51 P. 744; Kroutinger v. Board of Examiners, 8 Idaho 463, 69 P. 279; In re Huston, 27 Idaho 231, 147 P. 1064; Epperson v. Howell, 28 Idaho 338, 154 P. 621; State ex rel. Davis v. Eggers, 29 Nev. 469, 91 P. 819, 16 L. R. A., N. S., 630; Holmes v. Olcott, 96 Ore. 33, 189 P. 202; People v. Brooks, 16...