Evans v. Huston

• Citation: 27 Idaho 559,150 P. 14
• Parties: D. L. EVANS et al., Constituting the State Board of Education and the Board of Regents of the University of Idaho, Plaintiffs, v. FRED L. HUSTON, State Auditor, Defendant
• Decision Date: 18 June 1915
• Court: United States State Supreme Court of Idaho

150 P. 14

27 Idaho 559

D. L. EVANS et al., Constituting the State Board of Education and the Board of Regents of the University of Idaho, Plaintiffs,
v.
FRED L. HUSTON, State Auditor, Defendant

Supreme Court of Idaho

June 18, 1915

MANDATE-STATE AUDITOR-ALBION NORMAL SCHOOL FUND-INCOME ACCRUING THEREFROM-LEGISLATIVE APPROPRIATION OF-CONSTITUTIONAL AND STATUTORY CONSTRUCTION.

1. Sec. 13, art. 7, of the state constitution, provides that no money shall be drawn from the treasury but in pursuance of the appropriations made by law.

2. The first section of the appropriation act of 1913 (Sess. Laws 1913, p. 637) makes an appropriation for the support and maintenance of the several state institutions for the period commencing [27 Idaho 560] on the first Monday in January, 1913, and ending on the first Monday of January, 1915, and provides "That the amounts specifically appropriated for stated purposes by this act constitute the whole amount appropriated and to be used for any purposes during the years 1913 and 1914."

3. Said sec. 13, art. 7, of the constitution, prohibits the state auditor from drawing his warrant upon any fund in payment of any claim until a proper legislative appropriation is made for the payment of such claim.

4. Under the provisions of the fourth section of an act creating and establishing a normal school fund (Sess. Laws 1905, p. 393), it is provided: "That perpetually from and after the first day of January, 1907, one-half of all moneys which may accrue to the said normal school fund shall be, and the same are hereby, appropriated and set apart for the support and maintenance of the said Albion State Normal School and the same shall be, and they are hereby, made available for such purpose immediately upon their being credited to the said fund."

5. Under the provisions of subd. 66, sec. 17, of the Rev. Codes, said act of 1905 establishing the normal school fund was continued in force.

6. Secs. 3 and 7 of said act of 1905 make appropriations of certain funds.

7. The act of 1905 makes an appropriation of the income accruing from said school fund and continues such appropriation until amended or repealed by the legislature.

8. Held, that the balance remaining in said Albion State Normal School fund and the income from that fund during the years 1915 and 1916 have been appropriated for the support and maintenance of said normal school, and are available for that purpose.

An original proceeding in this court for a writ of mandate to compel the state auditor to draw his warrant for the payment of the January, 1915, salary for the principal of the Albion Normal School and to charge the same against the Albion Normal School fund which had accrued previous to the first day of January, 1915. After hearing, peremptory writ granted.

Peremptory writ issued. No costs awarded in the case.

Geo. C. Huebener, for Petitioner.

If, at the end of any biennium, there is an unexpended balance in any of specified school funds, it should still be there subject to the use of the specified schools and cannot be diverted into the "general fund," or any other fund, nor can it be appropriated for any other purpose, nor is any further legislative action required to dispose of it, nor can the state auditor refuse to follow the direction of the state board of education, when such direction is within the express terms of the grant and of the several legislative acts; nor can he, under any circumstances whatsoever, divert any portion of the "unexpended balance" to the "general fund" or to any other fund; and the unexpended balance must always remain in the fund available for the use of the Albion Normal School. (State v. Fitzpatrick, 5 Idaho 499, 51 P. 112; Roach v. Gooding, 11 Idaho 244, 81 P. 642; State v. Maynard, State Treasurer, 31 Wash. 132, 71 P. 775; Sheldon v. Purdy, 17 Wash. 135, 49 P. 228; Mitchell v. Colgan, 122 Cal. 296, 54 P. 905; State v. McMillan, 12 N.D. 280, 96 N.W. 310; State v. Board of Regents of University, 55...