Bragaw v. Gooding

• Decision Date: 11 February 1908
• Citation: 14 Idaho 288,94 P. 438
• Parties: ROBERT S. BRAGAW, as State Auditor, Plaintiff, v. FRANK R. GOODING, Governor, ROBERT LANSDON, Secretary of State, J. J. GUHEEN, Attorney General, Comprising the State Board of Examiners, Defendants
• Court: Idaho Supreme Court

94 P. 438

14 Idaho 288

ROBERT S. BRAGAW, as State Auditor, Plaintiff, v. FRANK R. GOODING, Governor, ROBERT LANSDON, Secretary of State, J. J. GUHEEN, Attorney General, Comprising the State Board of Examiners, Defendants

Supreme Court of Idaho

February 11, 1908

CLAIMS AGAINST THE STATE-STATE BOARD OF EXAMINERS-POWER-REMEDY WHERE STATE BOARD DISALLOWS CLAIMS-PROHIBITION.

1. Under sec. 4994, Rev. Stat., the writ of prohibition is the counterpart of the writ of mandate. It arrests the proceedings of any tribunal, corporation, board, or person when such proceedings are without or in excess of the jurisdiction of such tribunal, corporation, person or board.

2. Under sec. 18, art. 4 of the constitution, the governor secretary of state and attorney general are constituted as the state board of examiners, with power to examine all claims against the state, except salaries or compensation of officers fixed by law, and perform such other duties as may be prescribed by law.

3. The act of March 9, 1905 (Sess. Laws 1905, p. 366), passed in pursuance of the provisions of sec. 18, art. 4 of the constitution, makes it the duty of the state board of examiners to examine all claims against the state, except salaries and compensation of officers fixed by law, and empowers said board to approve or disapprove any claim or demand against the state, or any item thereof, and authorizes said board to recommend a less amount in payment of the whole, or any item thereof.

4. Under sec. 18, art. 4 of the state constitution, and the act of March 9, 1905, the state board of examiners may disallow in whole or in part, any claim presented by a state officer for services for clerk hire, in his said office.

5. The courts have no power or authority to set aside or reverse the action of the state board of examiners in disallowing, in whole or in part, any claim presented against the state.

6. In a case where the state board of examiners unjustly disallows a claim against the state, the claimant has his remedy under sec. 10, art. 5 of the constitution of this state, by applying to this court to hear said claim, and securing a recommendatory judgment of this court, to be presented to the next legislature for its action.

(Syllabus by the court.)

An original proceeding in this court for a writ of prohibition.

Demurrer sustained.

C. H. Libby, for Plaintiff, files no brief.

J. J. Guheen, Attorney General, and Edwin Snow, for the State.

The legislature conferred absolute power and authority upon the board to approve or disapprove, item by item, claims presented against the state, and allow or disallow them in whole or in part. They were given by the statute and the constitution full and complete authority in the matter of examing and passing on claims against the state. (Pyke v. Steunenberg, 5 Idaho 614, 51 P. 614.)

The action complained of is not in excess of the jurisdiction of the board, and does not come within the scope of the writ of prohibition. (Stein v. Morrison, 9 Idaho 426, 75 P. 246; Rust v. Stewart, 7 Idaho 558, 64 P. 222; In re Francis, 7 Idaho 98, 60 P. 561; Denning v. City of Moscow, 11 Idaho 415, 83 P. 339; In re Miller, 4 Idaho 711, 43 P. 870; Bellevue Water Co. v. Stockslager, 4 Idaho 636, 43 P. 568.)

STEWART, J. Ailshie, C. J., and Sullivan, J., concur.

OPINION

STEWART, J.

The plaintiff in his affidavit for the writ of prohibition, as applied for in this action, styles the action as follows: "In the Matter of the Application of Robert S. Bragaw, State Auditor of the State of Idaho, for the Issuance of a Writ of Prohibition to Frank R. Gooding, Robert Lansdon and J. J. Guheen, constituting and comprising the Board of Examiners." The action should have been styled as reformed and styled in this opinion. (Sec. 4955, Rev. Stat.)

This is an original application for a writ of prohibition. Robert S. Bragaw, the plaintiff, in his affidavit for the writ, alleges that he is the state auditor of the state of Idaho, and as such has authority to employ an assistant and clerk for the proper conduct of the business of his office; that by an act of the legislature, approved March 14, 1907, there was appropriated for the purpose of conducting the business of the office of state auditor, the sum of $ 20,000, and that in accordance with the authority in him vested, he employed as clerks to assist him in conducting the business of his office, Clara H. Bragaw at an agreed salary of $ 100 per month, and Robert S. Bragaw, Jr., at an agreed salary of $ 135 per month, and that such employment of said clerks was necessary for the proper conduct of the business of said office, and that the agreed salary was fair, just and reasonable; that the salary agreed to be paid said clerks will not exceed the appropriation made for the conduct of said office; that the plaintiff presented to Frank R. Gooding, governor, Robert Lansdon, secretary of state, and J. J. Guheen, attorney general, constituting and comprising the state board of examiners, claims of said clerks, in proper form, for services rendered, and approved by himself as state auditor, for their examination and approval; that said board of examiners refused and still refuse to allow any compensation to said clerks, except that said board has allowed to the clerk, Robert S. Bragaw, Jr., the sum of $ 75, which is inadequate for the services rendered; that by reason of the action of said board, the affiant will be denied the services of said clerks in conducting the business of his office, and prevented from performing the duties of his office as required by law; that the refusal of said board to allow said claims is without right and contrary to law and a usurpation of authority, and that said board was prompted to so act from personal, selfish, pernicious and malicious motives; that he is without other remedy, and for that reason makes this application for a writ of prohibition, and asks that said board be directed and commanded to allow the claims of the clerks so presented by him.

To this affidavit the defendants filed a demurrer on the ground that the affidavit fails to state facts sufficient to constitute a cause of action. The cause was argued and submitted on the demurrer to the affidavit. Under the facts alleged, is the plaintiff entitled to a writ of prohibition? Sec. 4994, Rev. Stat., provides: "The writ of prohibition is the counterpart of the writ of mandate. It arrests the proceedings of any tribunal, corporation, board or person, when such proceedings are without or in excess of the jurisdiction of such tribunal, corporation, board or person." If the state board of examiners, in disallowing the claims set forth by the petitioner did not exceed its jurisdiction, then the writ of prohibition will not lie.

Sec 18, art. 4 of the constitution of this state, among other things, provides: "The Governor, Secretary of State, and Attorney General . . . . shall constitute a Board of Examiners, with power to examine all claims against the state, except salaries or compensation of officers fixed by law, and perform such...