Herrick v. Gallet

Decision Date24 January 1922
Citation204 P. 477,35 Idaho 13
PartiesFRED HERRICK, Doing Business as the EXPORT LUMBER COMPANY, Plaintiff, v. E. G. GALLET, State Auditor, Defendant
CourtIdaho Supreme Court

CLAIM AGAINST STATE - APPROVAL OF BOARD OF EXAMINERS - AUDITOR-APPROPRIATION-MANDAMUS TO COMPEL ISSUANCE OF WARRANT-NECESSARY ALLEGATIONS - STATUTORY CONSTRUCTION - PARTICULAR STATUTE-GENERAL STATUTE-NECESSARY INCONSISTENCY-IMPLIED REPEAL.

1. No money can be drawn from the state treasury except in pursuance of a valid appropriation.

2. The state auditor cannot legally draw a warrant to pay a claim against the state, even though it has been allowed by the state board of examiners, unless the legislature has made an appropriation to cover it.

3. To constitute an appropriation, a legislative act must expressly authorize that certain specified funds shall be used for certain specified purposes.

4. The act of the state board of examiners, in approving a claim against the state, is not conclusive of the question as to whether the legislature has appropriated money to pay the same.

5. An allegation that the legislature has appropriated money for the payment of a claim is an essential allegation of a petition for a writ of mandate to compel the state auditor to draw a warrant on the treasurer.

6. When two acts of the legislature deal with the same subject matter, that one which is more minute and particular prevails.

7. When two acts of the legislature dealing with the same subject matter are necessarily inconsistent, the later enactment prevails over the earlier.

Original petition for Writ of Mandate. Demurrer sustained.

Demurrer sustained. Plaintiff's action dismissed, with costs to defendant.

Frank L. Moore, for Plaintiff.

Under the provisions of sec. 2666, C. S., the duties of the defendant as state auditor are purely ministerial. (In re Huston, 27 Idaho 231, 147 P. 1064; Jeffreys v Huston, 23 Idaho 372, 129 P. 1065; Gilbert v Moody, 3 Idaho 3, 25 P. 1092; Times Pub. Co. v. White, 23 R.I. 334, 50 A. 383; McKillop v. Board of Supervisors, 116 Mich. 614, 74 N.W. 1050; State v. Moore, 1 Ohio Dec. 506; Falk v. Strother, 84 Cal. 544, 22 P. 676, 24 P. 110.)

The state board of examiners in passing upon and certifying to the state auditor claims against the state, acts in a judicial capacity in the exercise of a discretionary power. (Pyke v. Steunenberg, 5 Idaho 614, 51 P. 614; Bragaw v. Gooding, 14 Idaho 288, 94 P. 438.)

The state board of examiners is a constitutional tribunal, and in passing a claim under sec. 2666, C. S., and certifying the same to the state auditor, determines the existence of all facts prerequisite to the drawing of a warrant by the auditor to pay the claim. (Kroutinger v. Board of Examiners, 8 Idaho 463, 69 P. 279; Bragaw v. Gooding, 14 Idaho 288, 94 P. 438.)

Roy L. Black, Attorney General, and James L. Boone, Assistant, for Defendant.

Sec. 3095, C. S., does not constitute an appropriation. (Kingsbury v. Anderson, 5 Idaho 771, 51 P. 744; Kroutinger v. Board of Examiners, 8 Idaho 463, 69 P. 279; Jeffreys v. Huston, 23 Idaho 372, 129 P. 1065; Epperson v. Howell, 28 Idaho 338, 154 P. 621.)

Sec. 2666, C. S., does not appropriate any moneys to pay such a claim as the plaintiff's. (Authorities above cited; Oliver v. Bolinger (Ark.), 225 S.W. 314.)

Where there are two statutes on the same subject, one statute dealing with the subject in a general and comprehensive way and another dealing with the same subject in a more minute and definite way, the two should be read together and harmonized if possible, but to the extent of any necessary repugnancy between them, the special will prevail over the general statute. Oregon Short Line R. Co. v. Minidoka County, 28 Idaho 214, 153 P. 424; Boise City National Bank v. Boise City, 15 Idaho 792, 100 P. 93.)

Statutes that pertain to the same subject matter should be construed together unless they are in conflict, and in case they are, the later or subsequent statute is deemed to repeal the former. (Noble v. Bragaw, 12 Idaho 265, 85 P. 903; Sutherland's Stat. Const., secs. 443, 447, 491.)

Sec. 2666, C. S., is inconsistent with the provisions of sec. 3095, C. S., and sec. 2666 being the later statute, will prevail over sec. 3095.

MCCARTHY, J. Rice, C. J., and Dunn and Lee, JJ., concur.

OPINION

MCCARTHY, J.

This is a petition for a writ of mandate to compel the defendant the state auditor, to draw his warrant for the sum of $ 12,948.55 upon the state treasurer for the payment, out of the state fish and game fund, of a claim for that amount which has been allowed by the state board of examiners. The amount in question represents the difference between the contract price of timber removed by plaintiff from Heyburn Park, under two contracts between him and the state board of land commissioners, and the amount paid by him in purchase of the timber. In an action brought by the state in the district court of the eighth judicial district, the contracts were held to be invalid, as being in violation of the terms and conditions fixed by the Secretary of the Interior in issuing patent to the state from the United States in pursuance of an act of Congress authorizing the same, and Herrick was perpetually enjoined from cutting or removing trees or timber from Heyburn Park. The claim was presented to the state board of examiners, approved by it, and certified to the state auditor. The state auditor has refused to draw his warrant upon the state treasury against the state fish and game fund, and the plaintiff herein petitions for a writ of mandate to compel him to do so.

Plaintiff's petition alleges that the money in question was deposited with the state of Idaho to the credit of the fish and game fund and placed in and became and now is a part of said fund; that the board of examiners, on or about June 29, 1921, passed plaintiff's claim and certified the same to defendant as state auditor, as a just and valid claim against the fish and game fund to be paid out of the moneys in said fund; that there has been, and now is in said fish and game fund sufficient money to pay said claim or any warrant issued thereon by defendant for the payment of the same. Defendant has demurred to the petition, thereby admitting all facts properly pleaded.

Plaintiff's contention may be summarized as follows: C. S., sec. 3095, provides that all improvements in Heyburn Park, together with the expenses of maintaining and governing the park, shall be paid out of the fish and game fund, and all revenue derived from the park shall be paid into such fund. C. S., sec. 2666, creates a continuing fund, to be known as the state fish and game fund, out of moneys derived from the operation of the fish and game bureau. The two sections taken together appropriated moneys in the state fish and game fund, including revenues derived from Heyburn Park, to the payment of claims arising out of expenditures in improving the park and the expenses of maintaining and governing the park. From these premises plaintiff's counsel concludes that there is money in the fish and game fund duly appropriated and available for the purpose of paying the claim. Counsel does not invoke the trust fund theory. Defendant's counsel contend that the warrant cannot be legally issued unless there has been such an appropriation; that the petition fails to show such an appropriation; that it therefore fails to state a cause of action; and the demurrer should be sustained.

The state constitution, VII, 13, provides that no money shall be drawn from the treasury but in pursuance of appropriations made by law. C. S., sec. 141, subdiv. 14, provides that it is the duty of the state auditor to draw warrants on the treasurer for the payment of moneys directed by law to be paid out of the treasury, but no warrant must be drawn unless authorized by law. No warrant can issue to pay a claim, even though allowed by the board of examiners, until the legislature has made an appropriation to cover the same. (Kroutinger v. Board of Examiners, 8 Idaho 463, 69 P. 279.)

As to what constitutes an appropriation, this court has used the following language:

"While it is true no set form of words is necessary to make an appropriation, language should be used that would show an intent of the legislature to make an appropriation. The mere declaration that certain charges against the state must be paid out of the state treasury does not necessarily make an appropriation. . . ." (Kingsbury v. Anderson, 5 Idaho 771, 51 P. 744.)

"An appropriation within the meaning of the section of our constitution last above quoted (VII, 13) is authority from the legislature expressly given in legal form, to the proper officers, to pay from the public moneys a specified sum, and no more, for a specified purpose, and no other. It follows that no money may lawfully be paid from the treasury except pursuant to and in accordance with an act of the legislature expressly appropriating it to the specific purpose for which it is paid." (Epperson v. Howell, 28 Idaho 338, at 343, 154 P. 621, 623.)

Plaintiff's counsel contends that the board of examiners acts quasi-judicially in passing on claims against the state. This contention is sound. (Pyke v Steunenberg, 5 Idaho 614, 51 P. 614; Bragaw v. Gooding, 14 Idaho 288, 94 P. 438.) He also contends that after a claim has been allowed by the board of examiners the duty of the auditor to draw the warrant is purely ministerial. This contention is also sound. (In re Huston, 27 Idaho 231, 147 P. 1064.) From these premises he concludes that the act of the state board of examiners in approving the claim has the effect of a conclusive decision that there is money in the treasury appropriated by the legislature to pay it, which prevents the defendant from...

To continue reading

Request your trial
22 cases
  • Jackson v. Gallet
    • United States
    • Idaho Supreme Court
    • 3 Julio 1924
    ...Idaho 231, 249, 147 P. 1064; Jeffreys v. Huston, 23 Idaho 372, 129 P. 1065; Epperson v. Howell, 28 Idaho 338, 154 P. 621; Herrick v. Gallet, 35 Idaho 13, 204 P. 477; Blaine County Inv. Co. v. Gallet, 35 Idaho 102, P. 1066; C. S., secs. 1269, 1272, 1274 (Sess. Laws 1923, chap. 108).) Histori......
  • State v. Evans
    • United States
    • Idaho Supreme Court
    • 16 Junio 1952
    ...specific intent. Then, if the facts were such that a distinction could not thus be drawn, the later statute would control. Herrick v. Gallet, 35 Idaho 13, 204 P. 477; State v. Martinez, 43 Idaho 180, 250 P. 239; Poston v. Hollar, 64 Idaho 322, 132 P.2d 142; State v. Casselman, 69 Idaho 237,......
  • Suppiger v. Enking
    • United States
    • Idaho Supreme Court
    • 25 Mayo 1939
    ... ... 1916E, 282; Ingard v. Parker, 27 Idaho 124, 131, 147 ... P. 293; State v. Moore, 36 Idaho 565, 585, 212 P ... 349; Diefendorf v. Gallet, 51 Idaho 619, 637, 10 ... P.2d 307.) ... No act ... of the Legislature will be held in valid by the court, unless ... its conflict ... [ 3 ] Blaine County Inv. Co. v. Gallet, ... 35 Idaho 102, 204 P. 1066; Epperson v. Howell, 28 ... Idaho 338, 154 P. 621; Herrick v. Gallet , 35 Idaho ... 13, 204 P. 477; Jackson v. Gallet, 39 Idaho 382, 228 ... P. 1068; Robinson v. Enking , 58 Idaho 24, 69 P.2d ... 603; ... ...
  • Taylor v. State, 6818
    • United States
    • Idaho Supreme Court
    • 21 Enero 1941
    ... ... usually understood by the people who adopted them ... ( Powell v. Spackman , 7 Idaho 692, 65 P. 503, 54 L ... R. A. 378; Reed v. Gallet , 50 Idaho 638, 299 P. 337; ... Prior v. Noland , 68 Colo. 263, 188 P. 729; ... Cashman v. Vickers , 69 Mont. 516, 223 P. 897; ... State v ... would be our duty to recognize and give effect to the later ... expression of the people on the subject covered by the ... amendment. ( Herrick v. Gallet , 35 Idaho 13, 20, 204 ... P. 477.) The office of attorney general is a part of the ... executive and administrative branch of the ... ...
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT